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Saturday, February 04, 2006

Time Magazine Preview: Hints Gonzalez plans the same frivolous arguments

This is a quick discussion of the flawed points Gonzalez plants to make on Feb 6, 2006 to the Senate Judiciary Committee, as reported by Time. Gonzalez narrowly defines the NSA program, fails to discuss the targeting at the Americans, and does not discuss the pre-9-11 mentoring.

The Congressional coordination related to 9-11 is irrelevant to whether FISA was the covering statute. FISA was constitutional and the president has violated the law.

Ref Time Magaine Article.

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

The technology aspects of the NSA program are irrelevant. The issue is whether the White House did or did not comply with the FISA requirements. Despite the self-evident exceptions, the White House did not apply for retroactive warrants. Rather, the White House lowered the 4th Amendment probable cause standard to unreasonable standard; then ignored the warrant requirement. This is unconstitutional. The White House and NSA have effectively rewritten the 4th Amendment without lawfully changing the 4th Amendment. Moreover, those individuals in the White House, DoD, and DoJ are known for what they are: In rebellion against the Constitution.

It remains a matter of evidence and law whether the current program is or is not what the Attorney General says it is. At this juncture, his credibility is zero. He appears to have committed perjury before the Committee.

“Operational aspects” is meaningless. It doesn’t matter what smokescreen they create: The technology was supposed to have complied with the law. Moreover, Article 1 Section 8 explicitly grants Congress the power to make rules – as is FISA – to gather evidence about Pirates – as is AlQueda. There is nothing unusual about this situation that would credibly justify any violation of the law.

However, Gonzalez’ major problem is linking the NSA program with 9-11 and terrorism. Rather, the unlawful conduct occurred before we knew anything about 9-11. Thus, any mention of what the President did or did not “get” with the post 9-11 Congressional authorization is meaningless.

At no time has Gonzalez or any one every discussed the issues with Congress. Rather, Gonzalez and other ignored the FISA and continued to engage in unlawful surveillance. It remains to be understood to what extent the fruit of the surveillance was used for media messages by the White House, or how the fruits of this surveillance was used to provide JTTF with investigative leads. The NSA’s unlawful surveillance would destroy the Whit House legal cases. Congress – not the Executive – has the power to make rules over which courts and procedures are or are not followed in the Judicial Branch. This President has ignored Article 1 Section 8 and asserted – unlawfully – that the Executive has this power.

To suggest this program is similar to some other era is frivolous. It’s been almost 60 days since this program was officially reported in the NYT. At no time has any legal argument mentioned a telegraph. Unlike the Civil war where the States were in rebellion, this President is in rebellion. Thus, the Congress should develop an NSA-like program to monitor the Executive. It is too late in the game for the Government to ask for a blanket approval of any new program. The violations of the law have already been committed. The FISA window has been exceeded. That DoJ doesn’t have the requisite investigative and support staff to justify warrants does not mean the law is ignored. We recommend DoJ be decertified and not authorized during the 2007 PB.

That the DoJ uses FISA “when it can” is unacceptable. This is mandatory as should be all oaths given before Senate Hearings.

It cannot be argued that Bush “acted in good faith.” He publicly stated this type of activity would only occur if there were warrants. Rather, we know the surveillance was occurring before 9-11 raising the prospect the President knew something he did not communicate to Congress before 9-11. That is bad faith.

It is irrelevant that the nation is or is not at war. Article 1 Section 8 powers of Congress to do or not do things does not get rewritten with a declaration of war. Rather, the ink in the cloth remains fixed. That there may or may not have been NSA directives related to this program is irrelevant. The covering cloth is the Constitution. It is wholly without merit to argue that technology and directives drive agency compliance with the Constitution. Rather, the agency and white house are responsible for ensuring the technology as it is created, used, and applied is consistent with the rule of law. There is nothing preventing the Congress from creating an NSA-like program that will check – with court oversight -- the executive’s compliance with federal statutes or monitor their intelligence oversight process.

It is fiction to suggest the program started after 9-11. This program started well before 9-11. Whether AlQueda did or did not attack is irrelevant to whether this program was in existence before 9-11. The Administrations’ arguments are frivolous and evidence of a broad conspiracy of rebellion against the US Constitution, led by the President and actively supported by Congress, DoD, and the Joint Staff.

It is fiction to call this a “terrorist program.” Moreover, calls are monitored regardless their origin. Other Echelon allies – New Zealand, Canada, Australia, and the UK -- regularly intercept data between US points and no external connection is required.

If – as the AG says is true – one party is Alqueda, then the White House cannot explain why it does not target these individuals wherever they might be. If the NSA can track their location, then this information should be available to the DoD. Yet, the results are at odds with that assertion, raising questions about the credibility that the starting point is known.

We continue to hear the “reasonable grounds” standard; but this is at odds with the probable cause requirement inherent in the constitution’s 4th Amendment. There is no credible case law the DoJ cites to suggest that “reasonable grounds” has any merit; nor does it cite any case law to show how this standard is true.

Had the program actually been a program related to 9-11, it would have been only started after 9-11. The facts prove otherwise.

Whether the White House did or did not seek permission is without question. They White House ignored both the FISA court and Congress. This is contrary to the law.

Any notion of “inherent authority” of the President to do anything is legal fiction. If such a power existed, the framers would have included an equally balanced power in the Congress to check this. Indeed, Article 1 Section 8 gives Congress the sole owner to define whether someone is or is not a pirate – as AlQueda is. The President does not have the power to write rules, wage war, or violate the law. Rather, he has the duty to ensure the laws are followed; and then assent to the Constitution. However, this President picks and chooses which clause he wants to follow. If the clause permits one branch to write rules, the President claims this as his own; if another branch has the power to raise and support an army, the President claims this function is for him to decide how it is best done. That is contrary to the Constitution which explicitly confers on Congress the power to define rules of capture, how US persons serving in support of the US are to be regulated, and whether movement of personnel and statutes are or are not lawful.

That the President authorizes something periodically is meaningless. The Constriction grants this judicial power to the courts, not to the president.

Because the wiretapping occurred before 9-11, we need not consider any argument related to the Congressional authorization for use of force after 9-11. Rather, the Congressional authorization was self-evidently non-existent, therefore could have no relationship to any activity prior to its inception. It is another matter when the authorization was conceived. That there were debates about whether the language would or would not be broadly or narrowly applied is irrelevant given the unlawful activity had already started well before 9-11.

That the White House may have started the program after speculating that Congress may or may not have accepted something is irrelevant. Even if this was true, the President fails to credibly explain why his alleged ‘self-evident power” would not have persuaded his own party to assent to this doctrine. Given the failure to coordinate with a Congress he effectively had control, we judge this argument is without merit.

That Gonzalez statements are or are not in question is irrelevant. The Senate has already stated emphatically that in their view Gonzalez has made misleading statements before the committee under oath. That the Attorney General may have been misunderstood at another time ha no bearing on whether he did or did not commit perjury before Congress.

Given the legal fiction employed – relying on post 9-11 activity – and making no mention of the conduct before 9-11, it is irrelevant whether congress would or would not have cooperated. The illegal conduct had already started. Any reference to speculative White House concerns need not be proven as they are irrelevant to whether the White House did or did not seek lawful approvals prior to 9-11. Self-evidently, these approvals did not occur.

The Attorney General asserts unpersuasively that the intercepts are lawful. By his own words, the Attorney General, NSA Alexander and the President assert standards of evidence were lowered from probable cause to unreasonable suspicion; and the warrants requirement was ignored. There is no merit to the Attorney General’s assertion that the intercepts were lawful.

To suggest that answers can be “incomplete” because of operational details is absurd. We’re merely looking at the law: Was it or was it not followed. At this juncture, it is clear the law was ignored regardless what the operations were.

The Attorney General fails to make any credible case that the monitoring is related to 9-11. The surveillance started before 9-11. Any assertion that the system of checks and balances would interfere with activities already started before war is legal non-sense to circumvent the constituently sound FISA requirements. Contrary to assertions that FISA is not constitutional, the Attorney General agreed in 2002 that the standards were sound. There was no challenge. Thus, we judge the assertion that FISA is or is not constitutional to be untimely.

That the FISA requirements include additional steps requiring time is irrelevant to whether the statue should or should not be followed. It is the inherent power of Congress to make rules. Had this process been unworkable, the solution is to remedy the process not destroy it.

Gonzalez makes a fatal assertion. First he argues that the program is linked with pirate related activity – Congress’ Section 8 powers – but then turns around and asserts that the President has the power to engage in surveillance of Americans. One cannot credibly argue that they are making good faith efforts – when the President then cites he has inherent authority to do what he has earlier denied doing. The program is – as the Attorney later admits – much broader in scope than narrow combat-related functions. Rather, the President asserts legal fiction to justify the broader application of the program, thereby not simply violating the FISA statutes as a regulatory mechanism, but destroys any notion the President plans to adhere to any 4th Amendment requirement for anyone –regardless their location in or out of the US.

The US law applies to US person acting on behalf of the United States. The US may not direct personnel to violate this law. The Constitution in Article 1 Section 8 explicitly states that all US persons serving on behalf of the US are subject to US laws. It does not matter whether their activity is in or out of the US. Thus any legal argument that the law does or does not apply because of the location of the target is irrelevant. The law applies on the basis of who is covered, not who is targeted, or whether they may or may not be a class the president defines as something Congress already has the power to make rules about.

We judge the Gonzalez testimony will simply recraft the failed arguments in a new era. Rather than assent to the rule of law, we’ll hear more of the same: Excuses, not solutions.

Gonzalez narrowly defines the program, but his out of court statements have fatally contradicted what we knew to be true: That the program started well before 9-11, and that the mentoring was directed at US persons inside the United States.

Unless the Senate swiftly moves to order the House to investigate, we judge Congress to have assented to this stonewalling> it is problematic when the White House defies its own party and refuses to turn over documents. But not a surprise when this Congress assents to that stonewalling.

Congress has until 01 March 2006 to formulate a plan to impeach the President and subdue his rebellion. Whether the militia is or is not called into active service is irrelevant. After 01 March 2006 – in the absence of a passed impeachment resolution on the House floor -- the voters will clearly know that Congress has no intention to act. The states have the power to compel congress to vote up or down on an impeachment proclamation, regardless whether the RNC does or does not let this issue get out of Committee.

The deadline remains: 01 March 2006. The voters have 9 months to evaluate whether Congress will assert the rule of law or join the president’s rebellion. Debates at the state level have already started. There is nothing the RNC, Congress, or the White House can do to stop this process. The voters will see whether the Congress asserts its oath or does more of what it does: Nothing.