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Tuesday, March 28, 2006

Unlocking the NSA: How the states can force the White House to appear at the Supreme Court

How to get the Supreme Court to rule on the Bush dictatorship

[ For a detailed version of this discussion, click this link here ]

I read the Ranking Member's opening statement at the NSA hearing, and have a solution to this impasse.

The problem is a lack of information. However, if you're looking for a way to find out the truth about the NSA, and throw another monkey wrench into the Bush plan, you're in luck.

Article IV gives each state the right to a Constitutional system. The DoJ's fatal statements -- that the NSA program is a lawful use of force against Americans -- is sufficient to prove the threat to the Constitution is not simply imminent, but has already started.

The states are well positioned to exercise their Article IV power and ask for assistance from abroad.

Here's the problem: DoJ has fatally admitted that the White House is illegally using military force against American civilians, thus the Article II requirement has been satisfied: [ Click ]

What we do know is that the White House and Congress are already in rebellion against the rule of law. Article IV has already been violated, it remains to be seen whether the States will get a response over the NSA illegal use of force.

The issue for the States to discuss is: Does illegal use of DoD military force -- as done through the NSA -- constitute a reasonable basis for the States to apply for protection against domestic violence:
Section 4. The United States shall guarantee to every state in this union a republican form of government, and shall protect each of them against invasion; and on application of the legislature, or of the executive (when the legislature cannot be convened) against domestic violence.

The issue isn't whether this is true or not; but whether the case can be made that given the President’s conduct -- total disregard for the law; and combined with the DOJ's statements that the NSA conduct is part of a military campaign -- is there an arguable question which the Congress needs to debate and is the basis for the state application.

Again, the issue is that we don't know what the President is doing; his DoJ has asserted that the NSA program is part a military campaign; and the use of military forces in an unlawful manner is a war crime.

If Bush is not serious about pre-emptive use of force – as the states would claim to justify the request for assistance -- then he will have to distance himself form this theory; this means that all military forces he currently uses to support this illegal doctrine amount to unlawful appropriations, outside what Congress has lawfully appropriated. This will trigger Congress to review the unlawful expenditures per Article 1 Section 9; if Congress fails to review the matter, then this will be additional problems for the Congressional leadership to explain. It is only March 2006, seven months away from the election.

Issues which the States need to throw into the laps of Congress and the courts:

  • Is it reasonable for a State to ask for assistance form Congress when the Federal Government openly uses military force ageist American civilians;

  • Does the State have to wait until war crimes by the Federal Government spread into actual deaths, or can the Congress be compelled to assert power to defend the state against the President's rebellion;

  • At what point can the Congress using Article 1 Section 8 lawfully raise a militia to subdue a Presidential rebellion against the Constitution

  • What level of disregard for the Constitution and violation of the 4th Amendment suffices to meet the standard of Article 1 Section 8 for a state to seek assistance related to a spreading Presidential rebellion against the constitution and actual, illegal use of military force against civilians to qualify as an imminent threat warranting Federal Government assistance;

  • If the States go through all the steps, may the President hold secret the information about the NSA program, all the while denying the state to reasonably act on the basis of what is known and seek assistance abroad?

  • If the DoJ statements about the NSA are to be taken as they are – and combined with the President’s statements about pre-emptive use of military power – is it not reasonable for a state to wonder whether the President plans to illegally use actual combat forces against American civilians?

    * * *

    Think about what the Executive is forced to deal with:

    A. First, he has openly defied the constituion;

    B. Second, under the laws of war, a civilian population using the principle of reciprocity, may lawfully igore the same Constitutoin the Execuive ignores;

    C. Third, in order to defeat, respond, or otherwise address to the State actions, he has to rely on the very document he is ignoring;

    D. Fourth, the problem the White House has is that they are caugh in a bind: Hoping to use a document -- or Constittoin -- that they [a] ignore and refuse to honor; and [b] fail to take action to timely respond when a State seeks to have assistance to ensure their Constitutional system is preserved.

    What is the Execuvie going to do? No matter what he does, he will have to then explain why he is relying on a document he does not honor; while at the same time force to explain why he's forcing others to comply with the Constituion that -- nder the laws of war and reciprocity -- do not have to be honored.

    What a legal mess for the White House.

    * * *

    If the Congress refuses to assist -- as they most likely will -- and combined with the NSA illegal use of force.

    Hhere's the triggering mechanism for the State Legislatures, Article II is the key language:
    No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay. Ref

    * * *

    This is what needs to happen:

    A. Realize you're moving in concert with an impeachment effort;

    B. Know that the Congress is not willing to timely act;

    C. Understand the DoJ has fatally admitted -- by its arguments -- that the US NSA is a tool of military force being used against the United States citizens, a violation of the laws of war

    D. First appeal to Congress -- and get a rejection or approval -- legislative side gets woken up;

    E. Second, take action to appeal for foreign assistance -- and likely get the White House to respond -- the Executive branch gets stunned; and

    F. Third, then take the matter to the US Supreme Court to resolve -- brining the Judicial Branch into the nexus.

    In one fell swoop, all three branches of government are forced to deal with the NSA issue, and respond: Where do they stand on the Constitution; and what are the facts.

    How did this happen? The States simply took the DoJ statements at its word, called the Congress to task; and then failing to get a timely response, swiftly moved to assert Article II powers, triggering the White House to either commit, or do nothing; prompting the Supreme Court to address the basis for the concern over the NSA unlawful use of force.

    * * *

    Here's what the States need to discuss and actively plan, to trigger a White House response:

    1. Make it known that the States do not assent to the imminent of the continued use of military power by the NSA, which violates the laws of war; and the failure of the White House to adequately explain itself raises trouble questions about the actual use of force against American civilians in contravention to the laws of war;

    2. Given the vagueness of the White House assurances over the NSA, and their reckless use of military force would reasonably find two things: [a] the use of force -- as DoJ asserts is going on -- is past imminent, but self-evident; and [b] Congress is not willing to assist the states -- satisfying the Article 1 requirement;

    3. Embark on a course of action that will protect the States from the clear and present threat to the Constitutional system -- asserting the Article IV power to protect the Constitutional system; and

    4. Make it known to the world that given the White House statements on the reckless use of military force against American civilians, that the States are simply asserting their Article IV and Article II powers to protect themselves from the obvious threat to the Constitutional system, which this Federal Government has failed to do.

    * * *

    This is the trap for the White House. They are in a no win situation. If the White House wants to stop the states from protecting their Constitutional system, they'll have to bring suit in the Supreme Court. Guess what? Then the States can compel discovery on the basis of their concern over the Constitution: The NSA illegal activity.

    Either the White House will provide the information, or they will refuse. Either way, they are in a no win situation.

    In short, there’s nothing stopping the states from doing more of this: Exactly what will most annoy a dictator: A source of power that is far closer to the real source of power: the People.

    * * *

    The big strategy the White House has is to keep the NSA issues out of court. Their excuses aren't working.

    Besides, the States have the power to do something things that will really annoy the White House. This will force the Supreme Court to hear the case.

    The White House knows it cannot win.

    * * *

    When you're between a wall and a dictatorship, what do you do?

    That's simple: You call their bluff.

    Article IV gives the states the power to seek assistance from abroad when they view their Constitution is at risk.

    It is time to assert that right and make it clear: The states view their Constitutional system at risk.

    The White House will likely whine and so something in response. That is the purpose: The Supreme Court is the first step on an issue between the States and the Federal Government.

    Then, like the 603 effort, will be the wake up call: The States are forcing the agenda, and the White House is reacting.

    The White House is in a no-win situation.

    * * *

    The goal of this State-triggered review at the Supreme Court is simple:

  • A. Compel discovery and fact-finding on the issues behind the reasonable fear the States face an imminent threat to their Constitutional system from the Federal government;

  • B. Possibly get the Supreme Court to rule on whether the NSA conduct is or is not illegal, and sufficient basis for the States to lawfully seek assistance from abroad;

  • C. To get a clear reading of where the Supreme Court stands -- if the Supreme Court is with or against the rule of law; or whether they need to be reformed under a New Constitution

  • D. To use the case as a tool to test the White House, forcing them to react and show their hand, and also accelerate the timeline, and remind the public we do not have to wait until November, we can move now to assert power against the dictatorship;

  • E. Prompt other states to realize there is a problem; mobilize action; and give others an idea of what they are dealing with; prompting different approaches, complicating the White House’s situation;

  • F. Use the events as a means to publicly filibusters outside the Senate's control; remind the RNC and White House that they have no agenda, cannot control the agenda, and the events are about the rule of law; and that the States can compel fact finding and responses despite the White House reluctance to cooperate with lawful things.

    In short, this forces the White House to react, and throws another monkey wrench into the Bush dictatorship.

    The issue isn't whether you do or do not win. Rather, it is merely the spectacle that a state would have the audacity to use this approach to show the world what Americans know well: That this reckless buffoon in the White House is not all powerful, but easily annoyed by simple things called the Constitution.

    That is the point. To throw it back at him, just as he's thrown it at Americans. And remind him that there is more on the way. There are 49 other states. All of them equally willing to call the White House bluff and be taken to the Supreme Court.

    * * *

    The White House has no defense. It only has unlawful power. It is not legitimate. It no longer commands respect of the military. It rules by reckless fear, not prudent leadership.

    They are weak. They are reactive. They are not all that intelligent.

    But most of all, the law is not on their side. So the states must use this to their advantage and use the law to further annoy them, and remind them that the law is further tipping away.

    Continue to remind them that they have no hope. That the law is at odds with their goals. They have no real goals other than to defy the law. They will lose. They know this, deep in their souls. They are being consumed alive. Their private meetings and Sunday religious worship are troubled. They cannot get it out of their mind.

    They had hoped that all this would have slipped away. That this would have blurred by. That we would already be in November.

    But it is not even Spring, still March. Seven long months until the election. That is alot of time for the RNC to ponder, be confused, and react. Those are many Sundays they'll wonder. Yes, it is going to get worse for them.

    * * *

    Keep in mind what is happening: The Constitution permits the states to take action. The goal at this point isn't to win or lose -- rather, it's to force the White House to react.

    If the White House tries to prevent the States from doing what they are lawfully allowed to -- seek foreign assistance -- this will simply agitate the voters.

    Rather, the White House will have two problems, if not more:

    1. They will have to explain why they are getting in the way of the States from doing what they are allowed to do;

    2. The will have to explain why they can or cannot stop this activity.

    No matter what the White House does -- whether it is inaction, stonewalling, obstruction, or assent -- they will have lost.

    That is the purpose: To force the White House to commit to something, and show that the White House has no power to stop the states from doing what they are lawfully allowed to do.

    At the same time, the States need to proceed with every expectation that the outcome will occur. namely, don't bluff with the expectation that the White House will stop you; rather, plan and move as if you fully expect the White House's efforts will fail, and that you will actually get some assistance.

    That is the key: To know that you move in harmony with the Constitution; and that a detailed plan to mobilize your state will work.

    The key is to force the White House to react sooner; and to accelerate the timeline. This will put the White House in a reactive, and defensive position. That is the point.

    The States are in a no-lose situation on this. The key is not to posture or bluff; the key is simply to assert your power.

    Every time you have a doubt as to whether you do or do not have power; or whether you do or do not have the ability to force the agenda, know this: The White House has no lawful agenda; you and your state citizens are not alone; there are 49 others with you; and collectively we have one thing that they cannot take away: The Constitution.

    Whether this becomes obvious sooner or later is irrelevant. There is only one thing you have to keep in mind: The Supreme Court will soon be the forum to review this matter. Then the world will know whether the Supreme Court is with the Constitution or it has also joined the unlawful rebellion against the same.

    This can be done soon, quickly, and without warning. Well before the November election. And it will assist fact finding over the NSA issues. Either they White House will cooperate -- another miracle -- or it will refuse, as was done in Nixon over the tapes, and the Supreme Court will have to show its hand.

    The key is to force this case to the Supreme Court, and do this soon within a matter of a few short weeks. Then discovery and fact finding will occur or not occur. The nation will either know or not know about the NSA. Then we will dream of new ways to annoy the dictators.

    * * *

    The power of We the People is infinite, especially as we continue to draft a New Constitution. Perhaps we will soon find that the Supreme Court would like to assent to rebellion. That is fine. We can draft a new Constitution which will make any assent to dictatorship something worth sanctioning not simply condoning or avoiding.

    We need not wait to wonder. Rather, it is time to force the White House to either react, or bring suit to prevent you from doing what is lawfully permissible.

    We will soon get more feedback where the Supreme Court stands on the rule of law. This is merely another tool that will trigger the dictatorship to react, more evidence that they are not all powerful. Rather, they are weak, exhausted, and collapsing.

    With more information, we will have more feedback on what needs to change in the New Constitution. This is useful. We will make the document stronger. There is nothing the White House can do to avoid providing the very tools and resources to ensure it is lawfully destroyed at the hand of Justice and the rule of law.

    Prepare your state plans with one notion in mind: The law is on your side. All the more reason to continue with your planning, visualize a desirable future, and think through the details of the plan to seek assistance. You have that right. It is lawful. And all things the White House says or does to the contrary is simply an attack on the Constitution and your Article IV powers to protect your Constitutional system.

    The key is simple: Be detailed, plan with success in mind, and then follow through. The White House cannot keep up with all 50 of the states, much less a single mess in Iraq, or within its own basement.

    Dictators have one fatal flaw: They are dictators, not people who inspire others. Real leaders are the ones who are going to find the solution, chart the course, and inspire you to find a way.

    The day is not dark. Rather, the White House is bleak. They have no hope.

    Americans have 300 million allies at home, and 6.2 billion allies overseas. All you have to do is reach out, and let the world know: We need help.

    Help has already been sent. The White House has no clue what is happening.

    The have not simply lost control of the agenda. They have lost control of all that they value, most of all their hope and the destiny of their souls.


    Link to:

    United States Senate Committee on the Judiciary
    NSA III: Wartime Executive Powers and the FISA Court
    March 28, 2006

    The Honorable Patrick Leahy
    United States Senator , Vermont

    Statement Of Senator Patrick Leahy,
    Ranking Member, Judiciary Committee,
    Hearing On “NSA III: War Time Executive Power and the FISA Court"

    March 28, 2006