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Monday, March 20, 2006

Pre-emptive government oversight

This note outlines the concept of pre-emptive government oversight.

The purpose of this note is not to advocate any unlawful activity. On the contrary, this note outlines the Power the People should have recognized in a new Constitution: The power to lawfully, non-violently retaliate against the government when the government is in rebellion against the rule of law.

This is for discussion purposes only. Do not rely on this information as guidance. Talk to a licensed attorney.

[ There is a Constitutional Convention Archive: Click ]

* * *

As we proceed on drafting a new Constitution for the United States -- with the goal of applying the lessons and remedying the self-evident defects which have permitted these many abuses and violation of rights -- one way forward is to explore the inherent right of the People.

The problem of late has been the lack of clarity of what a civilian population can do when the government unlawfully violates the Constitution and is in rebellion. There are several issues:

  • What conduct is acceptable

  • Which government abuse can lawfully be countered by a civilian population

  • How should the public lawfully engage with government officials who have no honor, violate their oaths of office, and undermine the rule of law.

    The issues are not hypothetical; rather, they are at the heart of what is flawed with the American Constitution: Power despite being separated is abused without sanction; and rights are violated without comment.

    This is not acceptable. They way forward is to remedy these flaws in the oversight system by stripping the power from the Federal government that permitted these abuses; and also including within the Constitution clear guidance to the People of what their lawful options are should these abuses and violations occur again.

    The way forward isn't to simply fix the Constitution, but it is to anchor well within the document clear reminders of what the People can do to protect their rights from abusive power. Our ancestors need not wait this long to lawfully tame a government in rebellion against the Constitution.

    * * *

    The way forward is to explore the defective oversight and flawed assumptions which permitted the abuse of power and violation of rights to occur. There need to be principles within the new Constitution that further strengthen the Constitution and protect rights.

    It is hoped the following exploratory piece will show there needs to be some new thinking on what will protect the new Constitution from those who swore to defend it. Those who violate their oath need to face meaningful sanctions for failing to do their jobs; at the same time, those who abuse power should know they face lawful pre-emptive action by the People to tame that abuse of power.

    This note outlines pre-emptive oversight; some rules that should be applied to the new Constitution, and concludes with a summary of some general solutions that should be included in the new Constitution. these will further prevent the abuse of power, ensure government asserts their oath, and protects the right of the people to be free from abusive power.

    * * *

    One of the notions of pre-emption applies to government. The argument is the government may pre-empt the use of force by others. This premise is faulty in that it allows action based on no-evidence, but a vague notion; conversely, others – under this theory of pre-emption – could pre-empt the pre-emption, thus defeating the objective of civilized society: To peacefully resolve disputes; rather, they descend into the Hobbsian brutish state of barbarity.

    And this is where we find ourselves: Government moves without regard to civilized norms. The question is what is to be done when the actors within that system refuse to mandate otherwise.

    Using the government’s notion of pre-emption – that of taking pre-emptive action against non-existent evidence and not=yet-committed crimes – the people should have their similar power recognized: That of pre-emptively engaging in aggressive government oversight. The doctrine is novel, controversial; moreover, the doctrine may compel some to violate the law. This is not the intent nor the purpose of this writing.

    Again, we do not advocate any unlawful activity.

    Rather, we begin an open discussion of the reasonable implications of the pre-emptive jurisprudence; and ask what the public should have recognized as inherent power and rights to lawfully assert themselves despite having committed no wrong. The results clash with the government’s claim that they can assert power without regard to the consequences.

    Going forward what is needed is a serious discussion as to what the logical implications of this pre-emptive use of power should be. Given the people have not expressly delegated this authority or power to the Government – the people should be lawfully allowed to assert a similar power that no government can take away. Bluntly, if the government chooses to embark on the path of pre-emption, then it must == as a balancing check on that pre-emption – must assent to pre-emptive oversight by the People. A movement that assert and uses a power it has not been delegated – that of pre-emption – and does not recognize the right of the people to engage in pre-emptive oversight is unlawfully asserting power; and does not legitimately lay claim to any lawful use of power. A government so disposed to wield power not lawfully grounded cannot then compel the People to assent to standards the government does not recognize: One of civility, order, and respect.

    The logical implication of the pre-emptive use of power isn’t the abuse of power; but the pre-emptive power of the People to presume the Government will unlawfully use power. This is a problem for Government to wrestle with. In the meantime, the People should have as their right – and under a new constitution recognized – their power of pre-emptive government oversight.

    The purpose of this note is to outline some of the principle that should be asserted in the new constitution – ones that recognize the Power of the People to lawfully retaliate against the Government in ways that the government chooses to abuse. Again, we do not advocate illegal action; rather, we advocate the public’s right to engage in pre-emptive oversight to be a recognized doctrine which destroys the Government’s credibly for claims in re fraud and others discovery used to unreasonably justify pre-emptive us of unlawful power.

    * * *

    Under the rules of evidence some conduct about the defendant’s behavior may be introduced under the relevance principle: In that it would should the behavior of the defendant in similar situations, and this is the basis for upward revisions based on the defendant’s knowledge, status, and other details.

    Conversely, there are situations where the government – as a plaintiff or defendant – may wish to introduce evidence that the public has a pattern of misrepresentations.

    Under pre-emptive oversight jurisprudence, no government would be able to make claims against any of the People when the court could be shown that the misrepresentations by the public were because of lawful retaliation against misrepresentations by the Government.

    Under the pre-emptive oversight theory, the government that has a pattern of lying and not honoring agreements cannot bring an action against the public when the public engages in a similar retaliatory effort. Namely, if a government agent lies to the public – then the public has the lawful right under the pre-emptive oversight theory – of making a similar misrepresentation without any fear that the government can hold the public to account.

    Clearly, some argue that this permits the exchanges between the People and the government to descend into chaos. That’s the point: Despite the government’s pre-emptive “right” to engage in non-sense, the public does not have the recognized power to lawfully retaliate except for the threat of sanctions. Yet, this does little to impose sanctions when and where they are most needed: On the government for their misrepresentations.

    Conversely, if the government knows that in exchange for uncivil conduct – that of lying to the public – they might face some sort of consequences which the court and Constitution would recognize, then they might be inclined not to do that. Also, if there are lawful sanctions that the public may take against law enforcement – should law enforcement lie in order to violate a right – then under the pre-emptive oversight theory, the public should have the right to lie to law enforcement without fear of consequence. Namely, once a member of law enforcement lies to the public, they cannot hold the public nor sanction them when the public engages in fraud against the office; rather, a misrepresentation to an office should not be considered an offense against the people – but simply an offense against that officer.

    Clearly, the implications of this rule are problematic: It would sanction lying in court under the notion that the officer lied to the court. Is this wise? Justice does not have an interest in out of court retaliation; however, the pre-emptive war theory relies on that faulty notion.

    The issue is what shall the courts recognize as a lawful pre-emptive and lawful retaliatory act the People may take against law enforcement – not in court or during an administrative hearing – but in a pre-emptive way outside the court, and before the dispute occurs. It is our view that once government officials lie, they lose all claims to assert any claim against the Public when the public pre-emptively retaliates by lying to the government official.

    Clearly the pre-emptive use of power is problematic: It asks the public to assent to the pre-emptive abuse of rights and power, while affording them little alternatives. This is at odds with civilized society. The government may not lay a superior claim on the use of pre-emption; while at the same time denying the People the power and right to assert pre-emptive oversight.

    All arguments the government uses to say that pre-emptive oversight are not acceptable, simply show the flaws with the pre-emptive use of force doctrine; namely, it feeds a descent to anarchy, and undermines confidence in government. That is the point: The pre-emptive use of force – as it currently is proposed – when left in the vacuum of reason – naively expect the other actors not to engage in pre-emptive oversight, retaliation, or initial effort. The pre-emptive theory of power – when devoid of oversight – is the causal factor behind the very chaos the pre-emptive theory hopes to avert. On this point alone, the pre-emptive use of power should be rejected.

    We’ve also discussed the pre-emptive use of torture in the ticking time bomb scenario, and show why this argument is flawed: Someone has to know something; or they are making it up. The attention should shift from the proposed target of the torture, to those who assert “they know that this is the right person to abuse.” The failure to shift attention to the accusatory-body – and away from the proposed target of the torture – shows the government entertains non-sense to haphazardly assert power.

    Again, some argue a pre-emptive use of government oversight will bring chaos; arguably the government-created chaos is widespread and there exists no other method of preemption which might impose any meaningful sanction on what is otherwise uncivilized government abuse of power, and has not been adequately managed. A failure of the government to adequately mange – combined with a failure to effectively follow the rules – invites a public rebuke in the form of pre-emptive oversight.

    This note expands on what rules should apply to this pre-emptive theory of oversight, and throws away the notion that the People need to assent to the abuse of power. Rather, the government has the problem in that it corrupts the trust between the People and the government actors. This is at the heart of the current legitimacy problem.

    * * *

    There are four broad considerations when discussing pre-emptive government oversight:

  • 1. Indicators of problems

  • 2. Lawful civilian conduct

  • 3. Waivers to rules of evidence

  • 4. Immunity to fraud committed upon the government

    In short, by asserting the pre-emptive theory of power on the People – and with a balanced theory of Pre-emptive Oversight by the People the relationship between the People and the Government is recognized for what it is: Devoid of civility.

    If the government agent or actor lies, then the pre-emptive theory of government oversight should recognize – and cannot sanction – the right of the People to pre-emptively engage in similar fraud on the government without any fear of sanction.

    Also, once the government agent lies to the public, the public cannot be compelled to answer for any pre-emptive lying the public commits on the government.

    Rather, all conduct the public deems as appropriate, should be accepted by the court as what is permitted under the pre-emptive theory of oversight.

    Under the pre-emptive theory of oversight, there are no indicators of problems – rather, merely the assertion of a problem is sufficient for the public to engage in lawful pre-emptive misrepresentations, fraud, and other crimes that the public should be able to commit without any expectation that the government sanction.

    Again, we’re not advocating illegal activity; rather, we’re showing the implications of the pre-emptive theory of power: It compels all actors to justify anarchy. This is at odds with civilized society.

    For those who read this later, know well that the above quotes will be taken out of context. The point of this comment is to explicitly state that we recognize the above comments will be used as a basis to assert – “this is a crazy notion” – without any balanced review of the initial pre-emptive theory of power: That of governments using power pre-emptively.

    Again, the point isn’t to advocate pre-emptive action or lawlessness; rather it is to show that the principles behind the pre-emptive doctrine – if universally applied – would subject the government to lawful oversight using methods at odds with civilized society: This is the major weakness of the pre-emptive use of power: It argues using power pre-emptive to protect a principle not practiced.

    This is hypocrisy and has no place in civilized society. Going forward, know that the defenders of pre-emptive use of power will be hypocritical in that they argue that it is “OK” to use power pre-emptively, but they refuse to recognize the same principles when it comes to the pre-emptive use of oversight. They cannot explain the double standard; rather, they merely assert the double standard as something that cannot be discussed.

    Indeed, should you mention their hypocrisy – albeit stupidity – you will likely be banned. Take that for what it is worth: They cannot stand to have their point debated; rather, they simply assert their non-sense as a standard they can apply, without any expectation that the principles be embraced by all. This is the non-sense we’ve seen under the Bush Administration.

    * * *

    What’s needed is a parallel civilian power which recognizes the legal right of the civilian population to pre-empt government abuse without any fear of consequences. This is at the heart of the proposed Constitution. Namely, in the future when a government descends into non-sense, there may be a time when the population is under the threat of abuse that they need to be able to turn to something that will protect their right to lawfully assert themselves. This is what is needed in the Constitution: A recognized right of the People to lawfully engage in the similar abuse of rights and power.

    Any right and power the government unlawfully uses, abuses, asserts, or violates – the People should have in the constitution the explicit recognized right to engage in the same retaliatory act against the government. No one should be asked to cower in the face of an abusive government, especially after they’ve been told that the government is there to help them, only to find out the opposite: It has secretly violated their rights and abused power; the public need not assent to the courts or the law in order to lawfully retaliate against those who abuse power.

    The People should be ever reminded – and the government forever on notice –t hat if the government descends into non-sense, the People may lawfully without fear of consequences – assert a similar abuse without fear of being held in the wrong.

    * * *

    Let’s dig deeper into this notion of a recognized rights and power of the People to lawfully retaliate against a government that engages in unchecked abuse.

    We shall call this the Law of Rebellion: Namely, when a government body violates the law, and the system refuses to check that violation – the People may assert that the government is in rebellion against the law.

    The law of rebellion is simple. Thos who do not enforce the law, or sanction violations of the law are in rebellion against the law and the people. Those in rebellion who violate the law, and refuse to assent to the rule of law and join others in not enforcing the law show they are not loyal to their oath and are in rebellion against the Constitution.

    The law of rebellion is simple. It recognizes the Power of the People to classify a system as being contrary to the Constitution, and permits the People to lawfully retaliate against the government that refuses to recognize the norms of civility, law, checks on power, or protection of rights. Namely, once the Government is in rebellion, the People no longer are bound to be loyal to that system; nor are the people in any way under any credible threat of being forced to show loyalty that is not loyal to them.

    This is the law of reciprocity under the pre-emptive theory of government oversight.

    * * *

    Let’s go over the general classifications of abuses under the Bush Administration; and then discuss some general principles that should be at the foundation of the new Constitution under this pre-emptive theory of government oversight.

    Again, you’ll see that the theory – when applied – recognize the inherent right of the people to be treated with respect. In short, a government that does not respect the rights of the people cannot command the people to be loyal; and abuse of power and failure to protect rights or enforce the law on those in the Bush Administration should reasonably invite the public to lawfully find the Bush Administration in rebellion and that all public action that removes itself and no longer shows any loyalty is permitted.

    * * *

    Here are the general lists of abuses. They are listed without any particular order in mind. Rather, they’re simply listed to show the pattern of abuses which – when contrasted with the pre-emptive oversight doctrine – give rise to some curious dilemmas for the government.

    These have been previously listed under the warrantless surveillance blogs on this site; at the end of the revelations over the warrantless surveillance.

    This government has:

    Self-delegated unlawful, abusive power
    Used power not delegated

    Relied on words not written
    Enforced laws that do not exist

    Sanctioned conduct that has not occurred
    Produced evidence which does not exist
    Ignored crimes
    Changed laws which sanction crimes

    This government has not been given power to act in one way, but expect us to act in another:
  • Ignore the law but enforce that law inconsistency
  • wage illegal war, but protected us using abuse
  • pay for illegal activity, but legally act out of convenience
  • abuse our rights, but assert those rights when they have a problem
  • Abuse power, but command us to assent to that unlawful abuse of power
  • Ignore the abuse of power, but camel others to assent to that abuse

    You’ll see that the above conduct is a widespread pattern; and this government is out of control. Under the pre-emptive oversight doctrine – as a fair and balanced response to a reckless government that is in rebellion – one should have the recognized right to lawfully protect themselves.

    The rest of this note goes over some of these principles, and concludes with a summary discussion of current problems and remedies that should be considered for the new Constitution.

    * * *

    Let’s consider the general rules that should apply under the pre-emptive theory of government oversight.

    One principle is to strip the applicability of the law when the civilian population is the subject and target of an unlawful government rebellion against the Constitution and People. Namely, this means that the People may strip the government of power they assert they have to change the law.

    The problem is this government changes the law because it has been caught over the NSA issue.

    In general government officials may not change the law to change facts; rather conduct is sanctioned don the basis of law at the time; or on the basis of civility that one should know not to violate. Violations of the law, abuse, and a failure to enforce 5100.77 in the DoD laws of war program should be recognized as a failure of self-regulation and a triggering signal that the government officials are in rebellion.

    * * *

    Second, there is the revelation factor.

    Those who abuse others or fail to perform on a promise or treat others with disrespect may not compel others to meet a standard they are not willing to perform. When government officials do not respect the people, we need not respect their power, authority, office, or words.

    * * *

    Third, is the balance between justice and loyalty.

    This principle does not look at justice and loyalty as a tradeoff; rather, when justice is denied, in order to balance the equation, loyalty must also be denied. Conversely, injustice and abuse commands disrespect and disloyalty without any fear of consequence.

    Leaders who refuse to sanction violation of the law need not be given loyalty; nor may there be sanctions on anyone who refuses to be loyal to injustice.

    * * *

    Fourth, government officials, employees, agents, contactors who lie lose the power to sanction those who lie to them in return.

    Government officials who promise to act but refuse to do so as promised lose any claim when they are publicly labeled as unresponsive and in rebellion against their oath.

    * * *

    Fifth, government official who promise to act – but know they have no plan to act; or fail to act as promised – lose any superior right to credibility, confidence, or trust.

    * * *

    Sixth, government officials who use their position of authority or proximity to others to gain information for intimidation shall lose protection of their office and have no claim when others do the same to them.

    * * *

    Seventh, government officials, agents, law enforcement who lie forever lose any claim against those who lie to them.

    Those who betray rust need not be trusted or given respect; nor compel others to do what is not provided.

    This means that there are consequences for lack of civility which law enforcement may not use as evidence to increase sanctions; rather, these sanctions are foreseeable, and despite these foreseeable risks t law enforcement they still lie.

    Moreover, there should be sanctions above and beyond what current is not effective: namely the worthless consequences of malfeasance or sanctions for government official fraud and corruption committed on the public.

    * * *

    Seventh, anyone who violates the laws of war – in planning, direction, executing, making appropriations, or supporting in any way – may be tried for war crimes; they have no immunity as government agents, contractors, legislators, or staffers. Civilians may also be tried for war crimes in their active support of the unlawful activity through advocacy, suppression of the truth, or in getting others to engage in war crimes.

    A mitigating fact is whether they removed themselves or provided evidence of the problem or stopped the result. Otherwise, they are considered co-conspirators to the war crimes.

    * * *

    Eighth, government official may not create any contract which permits anyone – including contractors – to be immune for abuse of rights; such contracts are not enforceable, and the immunity clauses cannot reasonably be relied upon.

    Making such contracts crates a personal liability for government agents and contractors.

    The government-agent contract crates an unlawful conspiracy; both the government agent and the contractor are personal liable for the consequences of that unlawful agreement and arrangement. It is foreseeable that such an arrangement will unlawfully result in the death, abuse, violation of rights, and abuse of power in distant lands.

    * * *

    Ninth, government officials who lie during the course of their duties or in off hours – lose all right or claim when others do the same.

    Government may not bring a claim for those who – in asserting their right to retaliation against the initial government deception -- retaliate against government by committing another fraud on government.

    Government agents, contractors, officials, and staffers do not have a superior right to deception; nor the power to sanction others for reasonable retribution for the offense.

    * * *

    Tenth, Congress shall make no law – nor may anyone force others to leave an area they are lawfully allowed to be – nor do they have the authority to dissuade other from exercising their freedoms on the basis of false information.

    Those in government who lie to discourage others subject themselves to having the People lawfully lie to them at any time.

    * * *

    Eleventh, government officials who create illusory requirements to prevent what is otherwise permitted, will be sanctioned for creating rules and asserting power beyond their lawful authority.

    * * *

    As you can see, the above rules are fairly clear in what the People should have no hesitation in asserting affirmatively without fear of any consequence. These are the rules and powers the people may lawfully assert under the pre-emptive oversight doctrine; and no person who asserts these rules may lawfully be found to have committed any crime.

    This may act as a deterrent against government abuse and fraud; more so when the government cannot sustain a case because it failed to remove the undisciplined ones from the public forum. The People have the right to be free form abuser and violation of their rights; when the government is in rebellion against those laws, the government loses all legal foundation and legitimacy to expect anyone to meet a standard of conduct the government officials refuse to demonstrate.

    * * *

    Finally, let’s review the general classicization of abuses and outline for each what might be a reasonable remedy. This list is not intended to be all inclusive. Rather, the goal is to show that when applying the pre-emptive theory of government oversight, we can recognize the People’s right to lawfully assert in a new Constitution reasonable standards of conduct that become principles the Government must meet, and forever prove they are meeting; otherwise, they lose legitimacy and any right to assert lawful power.

    Format [Problem, challenge: remedy, solution ]

    * * *

    Violation of Bill of Rights: Removal from office; violate their rights; no basis for them to assert their oath, nor justify action in the name of “protecting their oath or document.”

    Refuse to assert power/sanctioning illegal activity: Liability for failing to assert power; liability for appropriating funds for legal liability.

    Excessive force on separation of powers: Need to focus on enforcement, and separating auditing and investigation from government official power.

    * * *

    The above discussion shows us what the real problem is with the US government. The Attorney General and Chief auditors are not elected as they should be; and the Attorney General and Chief auditor should be outside either branch of government, but separate entities that directly report to eh People.

    Congress shall be stripped of its power to engage in fact finding, oversight, investigations, or call for criminal investigations. Rather, they may invite the auditors, but they shall have no power to compel or not compel an investigation into violations of the law. Also, the Executive shall have no supervisory power or influence on what information is or is not shared with the public on problems with internal controls, or defective performance.

    The above two changes will ensure that pre-emptive oversight is not needed and that problems are timely investigated. Funds should be appropriated outside the separated powers; and be something the public votes on directly. Congress and the Executive are revoked their power to have any influence on audits or investigations of government corruption and/or violation of the law. No longer can the Executive and Legislators agree to unlawfully suppress information as they did with Phase II, 9-11, or the NSA. Also, any effort to change the law to avoid sanctions – as was done with the NSA-FISA issue will be investigated and adjudicated to be outside the power of the Legislature. The legislature has no power to legalize something – this is an exclusive power delegated only to the judicial branch.

    The sanctions for this misconduct by Members of Congress and their staff should be subject to a body outside control of Congress at the state level. Under such a regime, Article 1 Section 5 power to make rules and regulate is revoked. The Legislature that asserts this power is in rebellion against the People; and the investigators should gather evidence showing those involved have committed violations of their oaths of office, and lawfully removed from office. Congress would no longer have any say on how its members are investigated, disciplined, or terminated. Rather, this power would be delegated outside the Congress, Judicial and Executive branch to a People’s branch.