Constant's pations

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Wednesday, February 08, 2006

NSA Hearing: House Judiciary Questions

Update 24 March 2006: Here's DoJ's response to the 51 questions, discussed below. Here are the rsponses to subsequent questions filed by the Ranking Committee Chairman, The Honorable John Conyers. [ Click ]

We recommend you carefully review DoJ's responses in light of the discussion below. Each of the RNC's 51 questions was problematic. We encourage you to consider the flaws discussed below before getting lost in the DoJ non-sense over the NSA unlawful activity.
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Last updated/revised 3:10 EST, 13 Feb 2006: Sensenbrenner's comments at oddds with the Technical program and NSA program. [ Click ]

House Judiciary Committee questions are not a serious attempt at oversight. Note the answers are not expected until 02 March 2006.

This means there's no serious effort to meet the 01 March 2006 deadline for action on impeachment. Game on for state proclamations: Click

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But that's only the beginning. It gets worse. New revelations in the WaPo raise questions about all three branches complicity, failure to assert rule of law/oaths. See WaPo Article: [ Click ]

Major Problem

It will be well after the November election until this mess gets sorted out. It's time for the voters to say, "Game over" and move to have Bush impeached, lawfully removed. Until he is off the political stage, this mess will not get sorted out. We have enough information to say what is going on: This man is not fit to remain in office.

Then, the next phase is to clean out Congress. Yes, I mean the current crew -- all of them. They've failed. Both parties. All we've heard are whining excuses but nobody will go to the House floor and say what needs to be said: "This man should be removed from office."

The states will have something to say about this. You have brought this on yourselves.

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[ For your convenience, there is an NSA Hearing Archive; Click here to read other content in the NSA Hearing Archive.]

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With a single news article, all the information Gonzalez told us goes out the window. This backwards: With a single revelation, we should have confirmation, and a narrowing to precisions.

We judge the NSA "program" is merely a bucket where all the "bad news" is hidden. Rather, what's going on is all three branches of government have failed. What's needed is a request by the US Congress to have a friendly nation do some random sampling of NSA activity, and then strip out the identifying information, and provide an assessment of the range of NSA activities.

Until this is done, the US Government is in no position to adequately bound the NSA activities. What's needed in the short term is a swift movement by the states to immediately issue a proclamation, and force the House to vote on impeachment. It is clear that the US Federal government is unable to assert leadership.

Bluntly, until the states issue a proclamation, there is no incentive for any Federal officer to admit what is going on: That the NSA programs [plural] are in defiance of the US Constitution. In the intermediate terms, what's needed is a concerted effort by the states to lawfully remove the President, and on a parallel track clean out the entire DC crew: Congress, Judicial Officers, and the Executive. Bluntly, they've proven themselves incapable of asserting their oath, or demanding accountability.

We need a new leader in DC: Someone who is willing to call it like it is, and start throwing people in jail. Right now, we've got a disaster, and no plan to adequately bound or investigate this issue. Bluntly, all voters should assume th4e worst: That the NSA is working with the President to destroy the Constitution, and their resources are being used to funnel information to JTTF for unlawful purposes. Until we have a new President, there's no reason to believe any non-sense story NSA or DoJ has given.

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[ For your convenience, there is an NSA Hearing Archive; Click here to read other content in the NSA Hearing Archive.]

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Summary of the Problem

Each passing minute, we hear more information at odds with the White House version.

This revelation shows us the entire premise behind the program is flawed. Namely, that the program -- as it was designed -- was gathering improper information; and DoJ knew this.

See comments at question 44, 47-49 for how this WaPo destroys the credibility of all three branches. They've been playing along with this, and failing to assert their oaths of office. All three branches!

DoJ contends the opposite. The link in his update refers to the problems with the FISA court despite the added problem of the pre-9-11 monitoring.

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[ More updates coming: Will be adding comments about each question as time goes on; this is a live-blog, and will be updated]

This is a non-sense line of questions: It is a 4-week delay!

The issue going forward:
1. Which questions "should have been asked, that were not"
2. How are the questions asked to permit DoJ/White House wiggle room
3. What effort, if any, does the Congress make to verify the stated information is true; or do they chase red herrings?

Here's a summary table of my concerns on the "reviews"

The way the questions are answered, combined with some problems, I'm concerned this list of questions has not been well thought. It seems more of a reaction, not a desire to truly look at the issues.

Let's consider some examples -- sample problems showing the questions are problematic:

Check question 45,

QUOTE: "Does this a [stet] probable cause standard translate to the NSA program?"

Issue on this question: "Probable cause" and "reasonable suspicion" are not looked at differently -- rather, the issue under the law is whether information -- if gleaned through illegal means should or should not be suppressed. The courts have never found that a lower standard was acceptable, or that the 4th Amendment has changed.

For a discussion of the legal-smoke and mirrors see "100":

On Question 49, Gonzalez already confirmed at the Hearing that there was a data mining program occurring.

Question 50a is meaningless: We already know the White House/NSA have multiple programs.

50c has already been denied -- not that the denial means anything, it's merely an affirmative denial which, when proven false, will be another false statement to Congress.

50d -- Yes, the information is shared with other agencies. Bolton confirmed this as did GCHQ's Gunn.

51. Follow-up needs to be: If these "problems with FISA" are known, why no request for a change?

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I'm going to change this around shortly.

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First thing to notice: The questions are divided into three categories:

Legal Authority [page 2 of 14] 56%: 29 questions, Question 1 - 29
Review Process [ 9 of 14] 17%: 9 questions, Questions 30-38
The Surveillance Program [11 of 14]: 27%: 14 questions, Questions 39-52

Arguably, the only issue with respect to removal is the first section -- once the program is illegal, it doesn't matter if the program is or is not reviewed.

Also, the third category isn't including the pre9-11 program, making this another set of irrelevant data; yet the problems with the questions imply more red herrings.

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What follows is a quick overview of the House Judiciary Questions: The problems. This is just a quick review.

The problem is: When we then dovetail these questions -- and the problems implicit in their construction -- with the new information of the day -- whatever that is -- the story doesn't stay still. This is a classic sign of a major fraud, cover-up.

Think of it this way: They've got a "program that they cannot lawfully do" and they're trying to fit it into a narrow legal range. The problem is the actual program -- as it is exposed for what it is -- is bigger than that hole; and the actual hole -- as lawfully defined by FISA -- is much smaller than what the Congress, Judicial Branch, and President have been saying.

Even the "other two branches" have no clue [a] how the actual conduct compares with the [b] the real statutes and Constitution. This has been going on for very long time. It will not get sorted out quickly. It's time for the state-level voters to accept what is going on: The Federal government has failed as a credible mechanism to check power or protect this Constitution.

The Federal government is the problem.

Question 1

This asserts the "inherent authority" argument, without looking at the Congress. This is shifting the focus from the specific, detailed FISA language.

1b is arguing over inherent authority, not what is the plain language in FISA.

It's likely these questions are from the White House.

Question 2

Notice the review is just cases that relate to "inherent authority," but fail to look at all the cases about the FISA, and issue of evidence suppression. This is a subtle way of narrowing the pool of cases to only those that favor your flawed argument.

Question 3

Says "legal holding" when the real question should be "precedent" and "appellate review."

Question 4

This shows coordination with the White House -- notice they're not really asking a question, but asserting a flawed premise consistent with the flawed White House argument.

Question 5

Notice the question starts with Carter, but then 5a changes to Congress. ON the issue of renunciation, why bring up Carter, but then change to whether Congress can or cannot renounce?

Also, notice what is going on: Congress -- the House Judiciary Committee -- is asking the Whit House, "Can we [in Congress] renounce your power?" But this is backwards: The "inherent authority" to violate the specific FISA never existed; so Congress is in no position to renouncement something that never existed; nor is it of any meaning to ask what the White House "view" of this illusory "renouncement."

This is just a non-sense question.

Question 6

Continues the red herring -- looking to "Presidential assertion of inherent authority" without looking at the specific language of FISA. Again, to rely on the AUMF-Hamdii nexus asks that we assume there is ambiguity with can "only" be resolved by deferring to the President.

But FISA< unlike Hamdii-AUMF, is specific; there is no reason to ask whether the President does or does not have inherent authority as precedent unless this is a desire to assert some "presidential precedent theory" as if it were case law. Danger: This is asking the Congress to recognize that the President’s actions -- not the courts or the laws by Congress -- set precedent. This smells of a setup over the McCain Torture bill.

Question 7

This if a flawed question: It asks that we start with a flawed premise -- that AUMF is relevant, or trumps FISA -- and that the President should "explain" why a flawed premise is to be believed.

A relevant question would ask: "We understand your position; but the law is the opposite. Please explain why your assertions about AUMF are at odds with the statute."

Question 8

This question incorrectly narrows the focus to the "known program" and fails to focus on pre 9-11 monitoring.

8b: Notice this question does not mention the courts -- but asks that the Administration recognize a Constitutional duty to author similar programs.

They’re trying to create a legal fiction called, "Presidential precedent" to trump what the Congress -- through FISA -- and the courts say. This is not a credible legal approach.

8c: Asks that we focus on the flawed legal arguments related to the communications act, and focus on "the impact that the 1934 rules" will have on the president. This is backwards: FISA has already been passed after this act; and the President cannot claim that the FISA is "interfered with" by requirements in the 1934 Communications Act. This asks us to defer to the 1930s case law as "proof" that the FISA is an infringement. They're moving to argue that FISA is unconstitutional.

Question 9

Again this is backwards: They’re trying to argue that the program is lawful; then say, "Because it is lawful, FISA or anything that prohibits it is an inappropriate check." They're arguing that the "lawful program" [which violates FISA] is OK; the problem is that FISA prohibits the President from doing something.

This is fiction. FISA permits the program under wartime conditions. See 50 USC 1811.

Notice the question is not focused on the right thing: The question asks whether FISA forbids the "activities." That's irrelevant: The issue is whether FISA is or is not followed.

FISA doesn't prohibit any program -- it simply tells the President: IF you want to do something, this is how you get a warrant. What they're doing is shifting the attention from the FISA violations -- the conduct by people -- and trying to argue that the program is inherently lawful; and that all things that get in the way of this 'assertion of lawfulness" are not credible. That has no legal basis and is frivolous.

Bluntly this is the same as the Iraq WMD issue: Assert the war must be waged, then find a "legal way" to argue it is "OK to wage unlawful war." More of a CEO-approach to accounting: "Hay, we call these numbers as we see them -- the auditors’ job is to say that what we're doing is lawful. If the auditors disagree we fire them."

Question 10

This one reverses the legal theory: It asks that we "read" a statute a "certain way," and then see if we can't make the law stretch to accommodate what has been going on. This is like a retroactive ratification of something outside bounds; or an umpire tilting the television or adjusting the dials to make the ball appear to land on the other side of the line.

Again, FISA does not prohibit any Presidential power, conduct, or action: It merely says that if the President wants to do something, he must do so as long as he gets a warrant. If he has no warrant, then he can't do it. That is not a restriction on power; that is a check on power to make sure it is reasonable.

Asking the "constitutional issues" that would arise if FISA were read the other way -- that it prohibits something -- incorrectly argues as a premise that the law is wrong. This is absurd. Again, all we've got is a President who's been caught, openly admitted he did something contrary to the law, and rather than discipline this leader by removing him, they're asking us to change the rules to accommodate his action. Don't they have a 12-step program for this, "Congressional-alcoholics anonymous?"

Question 11

Does the same thing in that it asserts a non-sense argument -- from DoJ -- is to be asserted as something worth merit. DoJ fails to cite any case law that says why this "established principles of statutory construction" is relevant, real, or should be relied upon as a legal theory.

This construction asks us to embrace a fiction: That "in order to not find that the President violated the law" all acts of Congress must be interpreted in a way so that their enforcement does not restrict the President from doing what he wants.

Again, that is legal fiction. The President is bound by the law; he is not free to assert that the laws are to be treated like a play toy to be wound and bound as he deems fit.

Warning: Question 11 includes a bogus "contrary view". If you read it closely you'll see that the "other view" is merely an assertion of the same flawed approach: Arguing that AUMF cannot stop the President from doing what he wants. This is not a contrary view, but one offered as a red herring for an irrelevant debate over a non-sense issue.

It is legal fiction to argue that AUMF trumps FISA.

Notice the conclusion is at odds with what Specter and Gonzalez discussed in the Jackson case in terms of specificity. We judge these questions are from the White House to distract attention form the real issue: AUMF is general; and the FISA is specific; therefore, the FISA specific language is not trumped by AUMF.

11b: Notice what is not asked: There's no mention of the President's conduct; rather, they're focusing the attention on the law -- there is no conflict: FISA trumps AUMF; and the issue is the President has violated what the NSA employees have raised concerns about.

Question 12

Notice the use of the buzzword "terrorist surveillance program." If this was a credible question it would ask a neutral question as in, "This program".

Expect many non-sense answers in response.

Question 13

Notice they're changing the issue from the President's violations of FISA, to whether or not NSA and DoJ will have harmonic guidance. A red herring.

Question 14

This question is designed to raise doubts about whether the FISA changes have been timely, or whether Congress has or has not been cooperative.

Question 15

Notice they're ignoring the violations of FISA; and whether FISA does or does not apply -- but asserting that the program as authorized was appropriately approved despite no judicial oversight. Are they saying that the President can authorize a program without Judicial Review; and that the President can say "OK to ignore the law" if the President says it is OK?

Question 16

Notice, Congress is asking the President what the "legislative history" is of a statute. That's backwards: Congress should be asserting, "This is the history, and you're at odds with our intention."

Question 17

Is more of the Presidential precedent theory, at odds with separation of powers.

Question 18

Notice the mixing of terms. If the President employs a technology on American soil in defiance of the law, then he is waging war unlawfully on Americans.

But rather than face this prospect, Sensenbrenner introduces AlQueda to distract attention from whether the President is or is not unlawfully waging war on the Battlefield. The issue changes from the statute, and what Bush is doing; to issues of definition over what is or is not a battlfi4eld, and whether the battle field is or is not true.

This is a red herring. It asks us to embrace a false argument over whether or not the description of the war is or is not true; but this is irrelevant in that FISA applies in both peace and war, regardless whether there is agreement over whether progress is occurring, or the President is lawfully prosecuting that war.

Question 19

Rather than focus on FISA applicability, they're changing the focus to whether AUMF does or does not apply. This is irrelevant.

Question 20

This question shifts the focus form the FISA violations, to whether the Executive order is or is not affected; or whether the executive order is narrow or wide enough to target ALQueda. This is backwards.

The FISA defines the procedures to gather warrants; the Executive Order cannot violate the Statutes. This was affirmed in Youngstown.

Question 21

This question shifts the focus from the FISA Violations, to whether the unlawful conduct is or is not force. This is irrelevant. Article 1 Section 8 gives Congress the power to regulate programs, US persons, and facilities regardless whether they are used in peacetime, wartime, or other uses.

Question 22

Does a nice job at raising the issue of Hamdii, then asking an unrelated question of specificity. This question is designed to acknowledge that Hamdii has no relevant; but the question fails to probe into this aspect of the irrelevance.

A better question would have asserted that Hamdii had no relevance, and compelled the White House to provide something that made sense.

Question 23

This asks us to presume that Hamdii is relevant. Rather, the two cases are different.

Hamdii was about the uncertainty in the absence of statutory specificity. That problem does not occur with this case: FISA is explicit.

This question is designed to acknowledge the problems with Hamdii, but shift the debate and focus form whether it is relevant, to a side issue. Another red herring.

This question also commits a fatal error: It asks us to assume that the AUMF is something to be cherished -- as if it were a holy paper -- but fails to show the real problem: Both the Constitution and FISA have been shredded in order to place deference on "whether the AUMF is or is not protected."

The real issue: Why is the AUMF given more deference -- and the answer is that the president has to do this as a legal maneuver to avoid consequences.

question 24

This question shifts the focus to the AUMF, and away from the President’s conduct.

This asks us to believe that Hamdii has relevance. It does not in this case; Hamdii does not apply because the FISA issue, unlike Hamdii already has specific terms included. There is not ambiguity.

This question asks the audience to believe that Hamdii -- because it may or may not say something supporting a conclusion contrary to DoD -- is to be given deference. This is frivolous.

Question 25

This is a curious one. It starts off -- arguably with false facts in order to invite the White House to argue these assertions -- in the likely hopes of sidestepping the issue: Why is the President fit for office?

The question does not first present case law that contracts the Presidents position; nor does it ask the President to argue why the law should or should not be followed. Rather, the question asserts that there are precedents to justify the unlawful conduct.

We cannot entertain this discussion so long as the House Judiciary Committee engages in this non-sense. This is a clear sign of asserting that precedents exist allowing the President to do what he wants. This is contrary to our system of checks and balances.

Question 26

This question asks us to find a loophole that authorizes the president to ignore FISA. Yes, there are situation where the President and NSA have violated the law; and that information was suppressed.

IN this case, the President has done the same. The FISA does not Permit the President to lawfully engage in surveillance if there is no warrant within the 15 day time limit to secure a warrant.

Notice, rather than subject this legal question to the court, the Congress is saying that it is up to the President to decide if there is or is not a legal precedent to do this. This is a violation of the Separation of Powers. Again, the issue is the White House counsel has already asserted the position -- that it is legal to violate the law -- and this question merely asks him to reassert that position.

Question 27

This asks us to embrace the articles characterization; rather than explain the President's position, the issue changes to whether or not the article correctly characterized the issue. This is a red herring.

Question 28

The issue changes from FISA violations to whether the AUMF does or does not permit something. Specter was clear in the final comments with Gonzalez: AUMF is general and does not trump the specific language of FISA; and Gonzalez arguments are at odds with the Jackson test in Youngstown.

Question 29

This question changes the issue from [a] FISA violations/words/specific language and [b] what the President failed to do; to the irrelevant issue of [c] whether the AUMF does or does not apply or is vague/specific, in the opinion of the White House.

This question starts off as a premise that the President can do what he wants; and asks whether the AUMF is or is not the way to permit this conduct. That's backwards. We look at eh specific statute, and examine what was said and done. Self-evidently, the President violated the law.

Question 30

Looks at irrelevant issues of "review". Notice the review is internal, by the same NSA analysts the White House ignored over the Iraq WMD: "There’s no WMD." Why is the White House relying on these "experts" now?

This question focuses only on the post 9-11 activity. It does not look at the pre 9-11 NSA activity monitoring domestic-domestic calls in violation of FISA.

The question asserts that the program was reviewed for compliance. However, the problem is that the President failed to subject this review to the FISA court. This is illegal.

30a: Notice the shift in the question: It changes from the "rive of the program" to the "review of the proposal for the program". One is a focus on the program before it started; another is whether or not the program review procedure is or is not sufficient.

Regardless, they've shifted the focus from the FISA violations to whether the program and/or review process is or isn't sufficient. Another red herring.

A 'proposal for the program" implies that there was a proposal. This appears to be fiction -- it appears to have been an order, and then DoJ tried to figure out how to justify it after the fact.

30b: This line of questions implies that the program was reviewed before it started. It is likely that there will be no admissible evidence to support the White House. They're going to make an error in this line of question. Assume massive document shredding related to this area. Please secure backup GCHQ files for cross reference in this area. Secure meeting minutes, presentation documents, and verify Whit House entry/access time sheets; and find out why the people who supposedly attended these meetings are not able to produce details of the planning.

Question 30a-e fail to discus the pre 9-11 NSA monitoring.

Question 31

It is speculation that the "review" by DoJ and NSA is "thorough." This is irrelevant to whether the President has violated FISA and should be removed from office.

The process to "reauthorize" the program involves a large rubber stamp, and a "discussion" involving people who may or may not be actually in the same building where the meeting took place. You'll note that the NSA entry/access times are not necessarily consistent with what the White House is saying over "who was actually at the meeting".

Question 32

This one is a curious one. Notice they're talking about "FISA judge notification." That's what's supposed to happen with Congress -- which it did not.

With respect to the FISA court -- it's absurd to believe that "the program" was lawful with a "notification" to the court. It's clear that a "notification' doesn't meet the clear FISA warrant requirement. One does not "notify" the court; they appear or file a motion. It is up to the court whether they recognize your appearance, or ask you to remain in the parking lot with the FBI agents who file false affidavits.

Rather, the FISA court notifies you: You are going to jail because you are lying to the court. Got it?

All information provide by the White House, NSA< and DoJ was given without the FISA court being able to discuss and consult with adequate legal reviews. The court was not given the opportunity to object. Rather, the presentation was simply one of "this is what is going on." There was no request for input; and the court was told like Congress that the program was classified. The Congress and Court appear to have been told "this is classified" in order to compartmentalize the "checks and balances" to the White House. This is a violation of the law, and unconstitutional.

Notice the question doesn't focus on "how did the Congress and Court" review the program; but whether the White House responded. This shifts the oversight from the Congress and Courts back to the White House. The court does not recognize the White House having any "role" in how it "responds" to the Court. The court simply decides; the White House, once the court makes the decision, may appeal.

It is irrelevant whether the White House had a response. The issue should be to what extent the Court and Congress were given sufficient information to know that the activities were outside the FISA lane. Given the NYT revelations, it is clear that the White House failed to fully inform. Thus, a solution to this matter is to give Congress an NSA-like capability to monitor what the White House is doing.

one cannot "have a problem" with a program when they have no information about 'the program." But this fails to address "the other programs." Moreover, it is irrelevant that Congress and the Courts were deceived; their inaction does not ratify the conduct. Rather, the FISA remains in place.

What we have here is a deception and assertion that "once you remain silent to our deception" you lose the right to check our power. That is exactly what the JTTF does during pretextual stops: If we can lie about what we're doing, we can get way, nobody will know about the NSA files we update after we gather this intelligence.

A violation of the law is not ratified through fraud or deceit. Rather, this becomes a second violations under the NSA Act of 1947 and a separate offense: Failing to provide information fully as required by statute. The issue isn't that Congress or the Court did or didn't act; but that the President violate the law, and then lied about what was going on to both branches of government.

Once a member of Congress is aware of the violation, they are permitted to charge the President with impeachment on the House floor. Noticing what this question is doing: "Uh, Mr. President what is the Congress allowed to do?" This is a clear sign that the toads on the House Judiciary Committee are doing what the White House wants: Deferring all decision making --however unlawful -- back to the heathens in the White House basement.

Question 33

This question asserts there was a "pre program review". We judge there was no review; and that the people "involved" were rubber stamping retroactively. Wow, do you think they were doing what the FISA court does: Retroactively authorizing something. . . but this only occurred after the White House got caught in 2005?

It's going to be funny if they say "someone was there" who was actually not working in the office at the time.

33 and 33a mix two things. 33 is about "pre program review" -- which should have been prior to the pre- 9-11 monitoring started in 2000.

However, 33a talks about a separate issue in 2004. This means they've dropped the subject on preprogram reviews. This is just a catch-all question to appear to deal with an issue; but fails to ask the question.

Notice the anecdotes in 33a,b,c have nothing to do with "pre program review" but are anecdotes of what happened after the unlawful activity started. These anecdotes are meaningless -- merely evidence that the White House and Judiciary Committee have agreed to focus on meaningless issues. How’s that State Proclamation coming calling for impeachment -- these people aren't serious.

It's doubtful the FBI questioned anything. They are idiots who will do what they're told, even lie. Notice the issue with the FBI isn’t whether the violations of the law were investigated; but whether the complaints -- as if they were an administrative issue or personnel matter -- were appropriately filed. This is absurd. If they filed a report, would that have been met with the same nonsense they got with the Guantanamo abuse -- Spike Bowman shows up and says, "Hay, it's all great." Too bad the videos proved otherwise, Spike. How you liking them apples?

33c Notice the issue gets changed from the FISA violations -- to whether or not the White House was or was not successful in fooling people. However, just because someone like FBI director Mueller -- or others with other titles -- was fooled, it doesn't mean the issue is "are they satisfied" but what was actually going on, and was the "concern" addressed using additional fraud? This appears to be the case.

Question 34

Notice this question asks the White House -- that other branch of government down the road by the reflecting pond -- whether Congress was or was not awake. Gee, I don't know: Let's ask the White House, "White House, was Congress doing its job?"

Get real! The issue isn't who attended -- but how closely, if at all the actual NSA activities prior to 9-11 were presented for Congress to review relative to FISA. Whether the White House did or didn't "respond" to the "concerns about incomplete information" is a side issue.

The real question should be: What has Congress done to ensure that White House non-sense, incomplete information, and violations of the law is subject to credible oversight. Self-evidently, the reviews are shams; and the Congress depends on the White House. A credible system will ask for the White House to provide information; then independently check -- using any means -- to see if that information is true or false. Once that confirmation occurs, then Congress has done its job. The problem is the current reviews do not permit this -- as was the case with the Iraq WMD issue.

So the issue is: What threats were given to Congress if they openly discussed this program; and why would so many holes exist -- but nobody discuss the legal issues with anyone? Answer: The White House lied about the program, violated the law, and then told the Congress to put up with it -- just like the White House does with every other botched program that is devoid of facts, legal foundation, and reality. "Take it or leave." That's not checks and balances: That's rubber stamping non-sense which is devoid of oversight, credible questions, and a close examination of reality.

Why isn't the Judiciary Committee going to the Congress and finding out this information?

Question 35

Starts with a faulty premise: That FISA violations could be ignored; that FISA court could be ignored; and that "consultations" with Congress met the requirements of FISA.

If FISA was or wasn’t' lawful -- why did the issue of "FISA-like notifications" to Congress even become an issue? Clearly, if the White House was ignoring FISA, there's no reason to believe that the White House would say, "Wow, we better make sure we tell Congress we're violation the law, we don't want to get in trouble."

This is absurd. The White House did violate the law; and it failed to fully inform Congress of what it was doing; and Congress failed to ensure the system of oversight included independent cross checking of the White House claims.

How many people in Congress who were 'really upset about this' resigned?

Notice this question is focusing on "terrorist surveillance program."

Question 36

This question makes no sense and needs to be rephrased. Read it again, ""Please explain why the Administration is only informing the Congress as a whole of the scope and nature of this program at the present time.": "As a whole' is at odds with what is going on -- the "information" is isolated to a small group; and the information provided is insufficient.

Rewrite this one. No, you don't get more time to answer. 1 March 2006 deadline is clear: we need an impeachment from the House, or the states are going to force it.

Question 37

Notice the issue: rather than go to Congress for the notes on 'what was said," Congress -- the organization that the White House ignores -- is being asked, "White House, can you give us copies of the notes that we don't have?"

Why doesn't the committee have a record of what was briefed; and why can't the Congress independently produce records of what did or didn't happen; and why is the White House being "relied upon" to provide information?

Clearly, the White House can say, "We don't have to provide that information." What is the Congress going to do: "Oh, looks like we can't exercise oversight -- the White House won't tell us how to do our jobs. What do we do!?!!" Get real!

37 would have us believe that "if Congress doesn't get information" or "is lied to or not informed" then inaction on that original activity -- which remains a violation of the law -- becomes a ratification. That is absurd. The issue is the White House conduct relative to the lawful FISA which the AUMF cannot explain away.

37d asks the White House, "Can you tell us the statutes we need to charge you with a crime"? Can you believe this -- the very House committee that is charge with overseeing the laws can't cite the law that the White House has violated. If one is going to ask a question, then you need to state the specific statute that you're citing or raising. This is one of those, "Uh, White House we have a question -- can you tell us how to ask it."

Question 38

This one focuses on the fruits of the program. Let's see: A president has violated the law, lied about it, and failed to inform Congress: Why do you believe that he's going to say something that resembles reality?

"Yes, we've monitored this program. . ." OK, if that's true, what does it tell you? Nothing. It doesn't focus on the FISA. There's nothing in FISA that says, "If the program self-reviews and says OK, then it's OK.

This is a waste of time question. Sure, it would be nice to know, "Mr. President, we know you're violation the law, and lying to us -- but may if you were effectively managing that unlawful program, that might make a difference." This is absurd!

Question 39

The assertion that this activity is a "terrorist surveillance program" is absurd. This WaPO revelation speaks volumes. [ Click ] By admitting that there was inadmissible evidence, the FISA court better characterizes the still-incompletely disclosed program: Namely, the program was targeting people who had no connection to terrorism; and that the DoJ knew this as did the Court; but the Court failed to ensure the entire NSA activity -- in all programs -- was shut down until there was a better description of what was going on.

It remains to be seen to what extent the NSA, DoJ, and White House have committed fraud on the court; and conversely to what extent specific individuals in all three branches have failed to do what should have been done: Investigate the nature of the NSA and White House activity when these issues were first discussed. It is clear that the FISA court operating in secret has not given the public the needed access to information on what was going on. If Congress had an NSA-like capability to target the Executive branch, the President would be better monitored.

Oh, this one is a good one: Tell us what is going on. You mean Congress still doesn’t know after all the "big briefings" that the White House provided? This should've been the first question: What have you excluded from what we know; and are there other things going on that violate the law? Again, Gonzalez already answered that: "Yes, there are other things, But I'm not going to tell you how we're violating the law in those areas."

Question 39 has a problem: It believes the White House assertion that the program -- as the White House explain it -- is related to what the White House says it is. A better approach would be to have an independent mechanism to verify that what the White House has said -- about the nature of the activity -- matches what is going on. These questions do not narrow the scope sufficiently.

Question 40

This is a good one: they focus on the NYT article, then change the issue from [a] was the FISA violated; to [b] was the NYT descript of that activity broad, or was the actual scope narrow. The issue raised has nothing to do with the conduct, and asks whether the NYT is or is not correctly reporting. Hello, is the House Judiciary Committee no working for the NYT editorial staff, and have they replaced the public editor whose job it is to evaluate the NYT reporting?

If you can't defend the President, just get in to an argument over whether the incorrect characterization of the issue was or was not correctly reported.

The House Judiciary Committee isn't examining FISA in this question;' but whether the NYT reporting of the program -- that is artificially narrow in reporting coverage -- is or is not accurate in technical coverage. But the nature of the program has nothing to do with whether or not the FISA court was or was not ignored -- it was ignored -- or whether the FISA statute was or was not violated -- it was violated.

Question 41
"This program" doesn't include the unlawful NSA pre-9-11 domestic monitoring between US citizens -- that's another program the White House hasn't talked about. All unlawful activity related to "communications other than those origination outside the US" are in another program, not this one. This one just violates the FISA; the other program violates the notion of freedom of association in a civilized society.

The WaPO revelation tells us the answer: Yes, the only way that information could be deemed by FISA court to be inadmissible is if the NSA had intercepted communication from US persons, domestic-to-domestic. [ Click ] Otherwise, the "foreign connection" would have trumped this ruling, and the FISA court would've said, "Hay, it's a foreign connection -- so we need to look at that." But despite that "foreign connection" the FISA court said "No"?!??

No: the opposite: There was no foreign connection; and the FISA court was catching wind to what was going on: NSA was intercepting communication that did not warrant any surveillance, were domestic, and were not sufficiently connected to anything. FISA knew this, and this is what prompted the White House to stop going to the FISA Court: Not because FISA was blocking needed monitoring of foreign issues/threats; but because FISA was catching information that should never have been collected had the program been accurately presented to the court.

Given the intercepts, and the FISA denials, we can reasonably conclude that the NSA program is simply a bucket of data that "fits into a convenient program description" and it remains to be understood "how many other NSA programs" there are that hold the NSA intercepts that "do not fit into this convenient bucket" -- which is now full of holes.

Question 42

This goes back to the Bogus FBI investigation into the cell phones. [ Click ]

This question focuses on the "incorrect location" problem. But the issue is the opposite: Whether the FISA is ignored; and why US phones are tapped, regardless their connection or disconnection with terrorism.

This is a phony question shifting the issue from FISA violations; to whether or not the "technical aspects" of that program are or are not making errors. Although interesting, this does nothing to focus on the FISA issue and the failure to ensure the FISA court's decisions were adhered to.

There is no reason to believe the White House. The rules are clear on FISA. They ignored them. They're now trying to change the subject to whether or not the technical details of that unlawful program have technical errors. This is like an umpire trying to decide whether the pitcher deliberately hit the player with a highball, a curve, or a drifter. IT doesn't matter how the violation occurred; only that the umpire is given a clear view, and the managers aren't throwing sand in the umpire's eyes.

Question 43

This is a legal question: Whether or not the "process to decide what is legal" belongs to the Court or the President. Clearly, the President has no say in this matter: FISA already outlined the process. The President has ignored the FISA court.

It doesn't matter what the purpose of the illegal activity was -- the President violated the law. Rather, the President cannot explain how the pre-9-11 monitoring could have been related to 9-11. Obviously, ALQueda was not the target of this monitoring -- if it was, the US would not have had 9-11. Rather, the program appears to be designed to have monitored "who knew about the pre 9-11 planning" and took appropriate measures to adjust the preparation for 9-11.

The question as it stands asserts, "We have to know the people are connected to AlQueda before we monitor them." That’s absurd: If you "know they’re connected to AlQueda" why are you monitoring them; why aren't you going after them? Answer: There is no connection to ALQueda -- if there was, they wouldn't be using this excuse; rather they'd use this information to direct US forces and eliminate this discussion. But the White House wants us to believe that they're "mentoring" these people. Baloney. They're monitoring Americans who haven't done anything wrong; and the US is on a fishing trip to find something that will annoy others.

The question about "is this true" is irrelevant: The White House isn't doing what it says. Rather this is using the same non-sense argument used to justify the ticking time bomb: they’re ignoring a critical question. [ Click ]

Question 44

This is like a mother going to a small child with ice cream all over his/her face, "Do you know how the ice cream got out of the fridge and into your stomach?"

Come on! You don't really believe the White House is going to say the truth, "Uh, we believe the program is illegal." Here's more of that line of discussion: [ Click ]

Notice what the question does: It distracts attention form the FISA violations/President's unlawful conduct; and asks the guilty ones to say, "Why does your conduct that violates the law actually meet the standards of the law?" This will open the door to case law that has been discredited. [ Click ]

Here's the WaPo revelation: [ Click ] Telling us the answer -- the conduct does not meet the 4th Amendment, and despite the FISA court and DoJ knowing this on multiple occasions, no effort was made to say, "We need to review this program to find out whether it is something we do not understand."

How was the program "recertified" as being "OK" to use before the FISA Court; or was the answer to say, "We're not going to go to the FISA court any more"?

Question 45

This question assumes the frivolous legal arguments have merit. All the case law the White House relies on focuses on the issues of seizure of evidence, and whether evidence can or cannot be suppressed. Click However, the White House cannot point to any case law that says FISA is to be ignored. rather, the issue with evidence and intercepts is whether the information about the crime -- namely the defendant, subject of the monitoring -- is to be jailed on the basis of this Monitoring; or whether the conviction can stand because the NSA information was not the primary reason for the conviction. If there are "other methods" to determine guilt, then the fact that the NSA monitoring was or was not happening was not sufficient grounds to say "Suppress the evidence."

However, this is not the same as saying, "FISA is ignored" or "The President may violate the law."

Question 46

This is an irrelevant question to whether the President should or should not be removed from office. The President who has lied about the conduct cannot be expected to be part of the solution. Clearly, the issue of civil liberties has had no impact on whether the FISA court was ignored -- the FISA court was ignored in order to violate civil liberties.

The question fails to address how "privacy issues" of the other unlawful NSA monitoring programs are addressed. Clearly, they are ignored. It doesn't matter what the president may "consider" going forward -- the crime has been committed. This is like asking a baseball player -- who has committed murder on national television -- "What reforms are you willing to comply with in your next season?" Get real.

Question 47

The irrelevant leak investigation. Yawn. The only way we would have a discussion about "what was really going on" in this "program" was because of the leak. These issues are clearly important. That the White House is "concerned about leaks" misses the point: They only got concerned after the NYT published the material.

The problem the President has is: IF "leaks" were important, why didn't Q2 do what it was supposed to do when the "big leak" occurred? Answer: Q2 can't figure out how the leak occurred; and they are worried that the method to communicate the nature of the program used methods which the NSA is unable to detect.

Speaking of investigations, what should the Congress and DoJ IG have done when it knew that inadmissible evidence was going before the court? [ Click ] What was the responsibility of the White House to ensure the laws related to the warrant and admissible evidence was preserved, not conveniently explained away?

Despite having an unlawful program, not only did the White House have no information or people; but the program relied on inadmissible evidence and produced the same result: Nothing. Despite violating the law to gather information, the White House still has found no AlQueda! This is a sham "war on terror" -- the only thing this has gotten us is an "excuse to violate the Constitution."

In the spirit of Ben Franklin, we have neither security nor freedom. No thanks to the US Government -- all three Branches, led by their Rebel-In-Chief Bush.

Question 48

This question has many twists and turns. Let's start at the last question: Is the Premise of the White House article true. That is the same type of question related to Question 40 -- whether the media is or is not correctly reporting the issue.

The point of the Washington Post article in this question wasn't whether there was or was not domestic surveillance, but whether -- despite the unlawful activity -- there were any results. Indeed, despite the x-thousands of National Security Letters [NSLs], and multi-million names in databases, the White House can only point to a small number of people.

Even if true, nothing in the FISA prevented the White House from getting warrants. Again, this changes the issue from what the Washington Post was reporting, and asks the obvious: Is there a domestic surveillance program in place? Of course, why else would the White House lie about what was going on before 9-11?

If they’ve only gotten 10 people, but are engaging in millions of intercepts, then obviously the basis for the monitoring is an arbitrary, meaningless standard; and targets are assigned on the basis of "whatever" the JTTF wants to use to target people.

We do not know how much information NSA has provided to JTTF; or how the local law enforcement has used pretextual stops to fill in the holes of the NSA databases. They target everyone that the JTTF and local law enforcement want to retaliation against; and who the DIA, CIFA, or CIA says they want to go after. This is a multi-agency tasking, and the orders to the NSA come from JTTF, DoD, and the local law enforcement. The other activities occurring are called "other programs" so that the Congress will not put the pieces together and ask questions about these other programs that violate the Posse Comitatus Act, Smith Act. yes: NSA is used to do data mining to create media messages for domestic propaganda consumption. This is how MI6 Operation Mass appeal was designed and orchestrated.

Question 48 also gets blown out of the water by this gem from WaPO: [ Click ] The only way that evidence could be improperly obtained -- as asserted in question 48 -- was if they narrowly defined the problem, and ignored the real program problems FISA knew about. The only way for the FISA court to know about unlawful/illegal NSA information was if the targets of the program were unreasonably targeted, and that the suspicion level was unreasonable. The only way to gather this kind of information -- that the FISA court would reject -- was if the program unlawfully collected that information; and US domestic calls were acquired. Otherwise, FISA would not have cared whether foreign targets were or were not intercepted on a "less than reasonable" standard

Question 49

This focus on the irrelevant technical issues. Again, FISA has been violated. IT doesn't matter how: The NSA has a system that violates the law.

The solution to this problem is for Congress to have an NSA-like monitoring system that is pointed at the Executive Branch, and the NSA to answer, "Is the NSA used in an unlawful manner?" and "Is the President violating the law?"

The additional information from the Washington Post [ Click ] tells us the nature of the problem -- how the NSA was or was not complying with the is changing. This means one thing: The actual program is different; and the "reason" for the "change in the description of what is going on" as related to "new information" is because the original-actual program has not been understood; and is being forced into a hole it does not fit.

As time passes, more information will show the current public revelations are at odds with what has actually been going on. We judge the program as originally executed prior to 9-11 is the closest to what is actually going on today; and that the current characterizations have one goal: Make the "apparent program" fit within what can be argued as lawful. Small problem: The "allowable hole" for the program is shrinking, while the actual program is growing.

It's time to call this what it is: A program is search of a purpose; and a leadership trying to sell something that could not otherwise lawfully exist. This is a classic government program: Formed to fit into a narrow legal definition, but unable to withstand serious oversight. Rather, than follow the rules, they crated the program to appear to be something it was not; now that the truth is out, we know the program was never legal, and this has always been known, even to Congress and the judicial branch.

The real issue: All three branches have committed a fraud on the public; and the FISA court was in a position to make inquiries, order investigations, and compel Congress to take action. All three branches have failed to ensure this Constitution was preserved. This has been piecemeal oversight, and each branch is covering itself. But the facts are clear: Three have been plenty of indicators since 2000 that this has been going on -- the answer in each case was to smear the public, or those who tried to stand up for themselves over the RNC demonstrations, Iraq WMD, and the entire chain of lies leading up to Iraq.

Arrogant Americans! The American Bar Association has some explaining to do: Where were you, and how bad was this going to get -- had the NYT not done something -- before you acted? Look at the abysmal disaster we have with Guantanamo: Where were the lawyers? We need a competing association that is Federally regulated, and one that directly competes with the ABA for market share. Lazy lawyers!

Question 50

50a: There are multiple illegal programs, all hidden from Congress and the FISA court.

50b: The 'trigger" to gather information is a call from JTTF, CIFA, or any domestic DoD intelligence unit that wants to target US citizens, and decided whether they want to enter their facility and conduct a warrantless search. If needed, JTTF will plant evidence to arrest those "they just know" are doing something wrong in order to get them off the street. This program is also linked to the US military's involvement with Operation Falcon; and the US movement of US citizens to Eastern Europe under the rendition program.

In terms of collection, there is no difference between what was going on before or after 9-11. The only change has been the change in oversight. After 9-11, the Congress was given less information, and oversight was reduced by design.

50c: You don't seriously believe the White House is going to tell you [a] what the standard of evaluation is; [b] which statute to read; or [c] whether someone has or has not violated the law. This is the job which Congress cannot do. Why isn't eh staff citing specific evidence and case law and statute to say, "This is what we know -- how do you plead?" Baseball: "Please tell us, Mr. Baseball player, which rules you want the Umpire to use when deciding whether you missed or should walk."

50d. There is all sorts of information gleaned through this program that is shared with any agency. Bolton was reading this stuff. GCHQ Gunn shows us that GCHQ conducts intercepts inside the US. The issue isn't "Which agencies" get this information, but which countries are providing information to the US government, and what are they getting in exchange for silence over what really happened over 9-11.

Remember the TSA's Jet Blue issue -- how data was sorted and saved. This is a far larger scale. US Contractors are given access to this information and are allowed to do things which the US government wants done: Profiling, media messaging, and how to put the right inflection on a key phrase when presenting more non-sense to Congress.

Question 51

This is like asking the crime syndicate, "Now that you've shown us where the bodies are buried, can you tell us how to bury them deeper?"

* * *

Analyzing Sensenbrenner's Comments

This analysis is in light of the House Judiciary Meeting with DoJ on 13 Feb 2006 [ click ]

Source: Click

“Questions have been raised about the President’s authority to establish the NSA’s terrorist surveillance program, which was created to protect Americans against a dangerous enemy intent upon using any means possible to destroy Americans and the freedoms we cherish.


1. The issue isn't whether the President can exercise his power; the issue is whether he violated the law.

2. It is unclear that the NSA activity was started after 9-11, or has any connection with 9-11. Rather, the activity appears to have started before 9-11. Any claims that this is a "terrorist surveillance program" are at odds with the laws of physics. It was impossible to have made the changes to the NSA program after 9-11 as quickly as was stated; rather, these capabilities already existed.

3. It is not clear that the program was linked to a "new threat" -- rather the unlawful activity -- in violation of the Constitution -- has netted us little. It is more credible to believe this program is for one purpose: To monitor who knows about the President's rebellion against the Constitution.

4. The "dangerous enemy" is the President of the Untied States.

Fulfillment of Congress’s oversight responsibility about this program no doubt will involve highly classified information that cannot be publicly released without harming national security. Nonetheless, I’m confident the unclassified responses to these questions will both assist the Committee’s oversight efforts and better inform the people that the program is designed to protect.”


1. It is not clear that these questions will do anything to exercise oversight; nor is it "classified" that the program does not meet FISA requirements. Also, the technical capabilities are irrelevant: It is clear the program does not meet the statutory intent in FISA.

2. These questions are meaningless. There is no reason to have any confidence that the responses to these questions will do anything to assist the Congress, assert lawful oversight, or inform the public of anything.

Added: 13 Feb 2006: The Chairman's letter is meaningless: Click