White House responses to House Judiciary Committee confirms failed legal defense
28 Mar 2006, 6:15P EST: Concern: White House, DoD war crimes against Americans
Did you read questions 21 in the DoJ responses to the House Judiciary Committee?
There was a discussion over whether Signals Intelligence was or was not essential to combat operations. The Congressional Research Service [CRS] argued it was not, and that the AUMF does not permit the NSA activity; and that the NSA illegal activity [1] violates of 4th Amendment, and is [2] outside the existing FISA exceptions permitting warrantless surveillance.
DoJ took another view, arguing that the CRIS was incorrect, and that Signals intelligence is a core military function, and the AUMF permitted this conduct. This is problematic. By arguing that the NSA activity is -- as it is currently being used illegally, and outside the laws of war -- a core military function, DoJ has opened up a can of worms related to Nuremburg, war crimes, and the illegal use of force against civilians.
They essentially argued that the AUMF permits the NSA to use military force against Americans: This is what they’re doing right now – [a] using military force to [b] violate the law in a manner that is [c] against civilians and [d] knowing full well the [e] conduct [f] violates the law and [g] is not lawful. These are all the elements of the Nuremburg war crimes! [ Elements; Click ]
DoJ asserts NSA illegal activity is part of a military operation -- this is against Americans; it is a war crime to illegally use military power against civilians as NSA is doing, and violation of the Geneva Conventions.
It is a war crime to illegally use military force against civilians. DoJ needs to immediately stop asserting that the AUMF grants anyone the power to violate the law; or rely on the AUMF to use military force against civilians.
DoJ and White House have a dilemma
A. If they change their argument -- and deny the NSA activity is a core function -- they will further undermine their non-existent defense; however,
B. If they refuse to admit their failed defense -- and assert that the NSA activity is a core military function -- it is arguing that it is committing a war crime against Americans.
Either way, the AUMF does not permit what the White House is doing; and the conduct, if we take DoJ's argument at face value, is a war crime.
But it gets worse. The only way that this conclusion cannot be reached is if DoJ contradicts what it has said in writing, and says the opposite: That the AUMF does not permit what it is doing; and that the signals intelligence is – as the CRS would say – is not essential to military operations. But if DoJ and the White House change their position, they undermine themselves; they're stuck with a failed defense that affirms they are committing war crimes against Americans.
Alert your friends: Read what the DoJ is saying -- they rely on the AUMF to assert that the NSA illegal activity is part of combat. That is illegal: They're illegally using military forces and combat supports against innocent civilians. [Click ; Backup ]
DoJ Fatal Assertion: Unless DoJ recants this arguments, Americans should take the DoJ statement for what it means, and make the adverse judgment that the White House argues Americans should assent to violations of the Geneva Convention.
This is outrageous. DoJ has a problem. Their defense is showing the Federal Government is moving without regard to the laws of war or the Geneva conventions. This may have been tolerated in Iraq; but we’re talking about Americans. There should be no distinction: All civilians should be free form the illegal use of military power.
Let's dig deeper into this. Under the laws of war there is a principle of reciprocity. If one party violates a law of war, the other parties may violate the same law. The White House and Congress ignore the Constitution; applying the principle of reciprocity, Americans may lawfully ignore the Constitution. In turn, we may lawfully draft a New Constitution that solves [a] this abuse of power; and [b] addresses the failure of Congress to protect the Country from the ongoing attacks against the Constitutional System, in violation of Article IV.
If DoJ fails to deny what it is saying –- and the NSA illegal activity does not stop -– then we may make the adverse inference that the Federal Government is doing exactly what DoJ says: Waging illegal war against Americans; and that Americans may lawfully ignore the same laws which the Federal Government does.
Betrayal of Trust: Lawful Removal From Office
The way forward is to simply realize that the AUMF of 2001 is not a legal foundation to justify what the NSA is doing. Rather, when Gonzalez in 2004 asked for FISA changes, he confirmed the FISA trumped the AUMF; had the AUMF done what DoJ now argues – that of permitting the military to illegally be used against civilians – there would have been no reason for FISA to have been updated. Rather, the President’s conduct shows us one thing: He always knew the FISA warrant requirements were clear, and continued to get warrants until he wanted to do something the FISA court did not let him do. Rather than change the law, he simply ignored the law; even after changing FISA in 2004, he sill violated the law.
He has betrayed our trust. He cannot be trusted to follow the laws or exceptions to the laws. Rather, he wants to craft his own laws, and ignore the laws at his discretion. There is not reason to trust him to do what he promised. This president needs to be lawfully removed from office and replaced with someone we can trust to do what he promises: Follow the law, and protect the constitution.
Added diagram comments 27 Mar 2006 11:05P EST [ Click here in re Question 14: Diagrams to assist House Judiciary for impeachment, voters ( Click ) Backup ]
[commented on questions 13-20; many spelling errors; rushed for your review; House Judiciary Ranking Members need to consider the new qeustions related to the pohone comany GC-DoJ AG Staff Atty discussions in 2004, prompting FISA changes, thereby showing AUMF was insufficient to appease the NSA contractors over teh illegal activtiy tousde teh FISA exceptiosn to teh warrant requirement; also see the illustrative diagrams in question 14 discussion]
One word: Backfired.
The fallacy of DoJ's statements are the linkage between events in 2001 or the AUMF and "subsequent" illegal activity. The unlawful NSA conduct was occuring prior to Sept 2001. All statments "justifying" the unlawful actiit on the basis of the AUMF are abusurd: The AUMF-illgal activity-nexues collapses when we consider the nexis did not exist prior to Sept 2001, but the illegal activity had already started.
On March 24, 2006 the Department of Justice issued 51 responses to the questions we previously characterized as worthy of kindling: Utter trash.
DoJ within a few short words signaled nothing had changed: The White House continues to assert non-sense.
It will only be a matter of time before the White House is impeached over the unlawful NSA activity which continues to violate the law.
This is a space filler.
Issues
Illegal expenditures, non-appropriated funds: President has violated the law -- unlawufl expenditure of non-appropriated funds. Where did the money come from that BUsh is using to do the NSA-reviews every 45 days -- Congress didn't appropriate it, how could they -- they didn't know about it.
Dictatorship: Bush asserts powers of all three branches
Interesting we keep talking about the same issue: "We have a dictatorship." Need to focus on solutions. Don't want to hear, "Woe is us, we can't do anything." OK, so we have a dictatroship, and Congress assent to it. Time to talk about solutions.
Solutions:
1. Other crimes: Where's FItzgerald and the indictments over the Plame; and ther other US Attorney reviews of the unlawful NSA activity?
2. State options: States appear to have a basis to request for assistance from overseas when the Federal Government no longer guarantees a Constitutional form of government.
3. Yale Law Professor Aman writes we can write a new Constitution outside Article V.
We the People can draft a new contitution outside Article V. We can lawfully revoke abused powers with a new Constitution; and defend a new Constitution against domestic enemies who unlawfully violate the law, abuse power, and violate rights.
We don't have to have a Constitutioanl Convention; abused power no longer need to be recognized, we can revoke the delegation of that power. Why aren't we discussing rewriting the Constitution to restructure the government, and further dilute the abused powers?
4. What's stopping We the People from rewriting the Constitution, so that:
- A. Remove the auditing, and investigatoin functions from DoJ/GAO and put them in a 4th Branch responsibe directly to the people
- B. We inject a judicial and State-level oversight-person into each cabinet-level department -- so that each department has power diluted;
- C. It is illegal for members of Congress appropriate money for illegal activities;
- D. We introduce intervals between terms
- E. Make it illegal to raise money during a term in office;
- F. The power to regulate Congress -- and impose sanctions on members for failing to assert power -- is stripped from the Congress, and reverted to the states;
- G. Bush no longer can assert powers that have been stripped from the executive; and
- H. It is illegal for Bush to spend /and for Congress to appropriate any money on programs which violate the law.
Each of the 51 questions had clear problems. DoJ's responses to date are nothing new. They cite case law that is meaningless; cut and paste words that do nothing to defense the White House.
Rather, the DoJ legal "team" would rather spend more time updating Wikis than providing a credible defense for the President. Feel free to review the 51 questions.
A quick review of the first three questions shows us more of the same. We encourage all readers to shift their attention to the DoJ Staff conduct on Wikis and ask why the DoJ IG has been unable to ensure that government computers are only used for official business.
If you know your President is war criminal, you might as well spend your time updating some case law or reading the laws of war. Not the idiots in the DoJ's office of legislative liaison or main office. They like to dream up reasons to violate the law; and then pretend the violations have no occurred.
Even the most stupid voters with the most ridiculous blogs can see through this non-sense.
The purpose of this blog is simply to dovetail the DOJ questions, the original analysis, and provide commentary on the DoJ responses in light of what we have learned. Never fear, there's a clear pattern: More of the same, no new information, and more fatal admissions implicit in the DoJ responses. Bluntly, the DoJ legal team is making it harder for the White House to remain in office. With a legal crew like this, who needs an adversarial system? The DoJ staff attorney "response" does more to bury the political career of the President than it does to explain anything.
Going forward, we remain committed to a full vetting of the full DoJ responses; and remain optimistic that the Congress -- in light of the absurd action taken against the American Media -- will soon awaken and realize that the voters have caught on: Even the ones who have non-sense blogs and are referred to as, "Idiots."
Yes, White House -- We the People -- even the most stupid of us -- have figured this out. You have seven months to get politically grounded into the waste heap of history; may you and your defenders continue to have your RNC members chip away at the already bankrupt political account.
Americans, go forward with confidence that the DoJ responses are more of the same: Worthless crap.
Format: Each of the 51 Questions is broken down into the following:
Question 1
Part A. 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.
Part B: It is incorrect to assert that the FISA court is the final court of appeals on NSA issues. The actual highest court is the US Supreme court. The question should be changed from “warrantless surveillance” to “unlawful White House activity.” It is a misnomer that the President has inherent authority to violate the law. What the CRS does or does not do is irrelevant – the issue is what the White House has not done: Hold itself accountable for the unlawful activity by assenting to the rule of law. Whether the CRS ‘interpretation” does or does not appear to do anything is meaningless. It remains unclear why the Congress is relying on the White House and DoJ to opine on the law – the DoJ and White House have no regard for the law restricting the conduct. In the wake of 9-11, despite no suspension of writ of Habeas corpus, the White House with DoJ attorneys discussed methods violate the Constitution, conduct illegal searches. It is absurd at this juncture for the Congress to ask what DoJ’s view of the court precedents are: Self-evidently they have contempt for the law.
Moreover, regardless what the courts have or have not state, the White House after 9-11 explicitly assented to the FISA rules. It doesn’t matter what the courts have said – the White House by its actions have already assented – and have led others to believe – that the existing statutes were sufficient, and needed to be respected. However, we learn that this is contrary to what was actually occurring: The White house before 9-11 had already in place within the NSA a team that confirmed the unlawful conduct could occur; and the unlawful conduct should not be detected.
Clearly, what did or didn’t a happen prior to FISA is meaningless. The issue is why despite assenting to FISA after 9-11, the White House would have the public believe that this is “all up for debate.” This is non-sense: The law is clear.
1. The Foreign Intelligence Surveillance Court of Review, as the Congressional
Research Service (CRS) concedes in its 2006 examination of the NSA
program, “is a court of appeals and is the highest court with express
authority over [the Foreign Intelligence Surveillance Act,] FISA to address
the issue, its reference to inherent constitutional authority for the President
to conduct warrantless foreign intelligence surveillance might be interpreted
to carry considerable weight.”6 The FISA Court of Review issued an opinion
in 2002 that stated “all the other courts to have decided the issue, held that
the President did have inherent authority to conduct warrantless searches to
obtain foreign intelligence information . . . . We take for granted that the
President does have that authority . . . .”7 The CRS memorandum dated
January 5, 2006 does not dispute the fact that all other courts support the
proposition that the President has inherent authority to conduct warrantless
searches. Instead, the CRS memorandum appears to attempt to downplay
these precedents with a statement that the FISA Court of Review’s “allusion
to the holdings of ‘all the other courts to have considered the issue,’ appears
to have been the cases which pre-date FISA’s passage or which address pre-
FISA surveillances.”8
a. Have any courts addressed this issue since the enactment of FISA?
b. Have any courts since the enactment of FISA concluded that the
President did not have inherent authority?
c. Does reliance on pre-FISA cases by the FISA Court of Review
“[undercut] the persuasive force”9 of the conclusion that the President
has inherent constitutional authority to conduct warrantless surveillance?
Problems with DoJ response
It parrots back language which the White House injected into the original question.
It is absurd to call the President’s illegal conduct consistent with “inherent authority” – this is legal fiction. There are no implied powers – they must be explicitly. The Congress has the explicitly power under Article 1 section 8 to make rules.
It is a false assertion that the FISA court of Review affirmed any such “authority”. Rather all case law related to FISA hinges on whether information and evidence gathered is or is not admissible. The President has the ministerial duty to conduct this activity consistent with the law. The cited cases are absurd. They do nothing to justify public confidence. All cases affirm the right of the government to admit evidence that was otherwise illegally obtained – the court did this because the evidence in some cases could be gleaned otherwise; or guilt was not found on the basis of the NSA data alone.
What distinguishes the DoJ cited cases from the real issue – whether or not the Congress will censure and impeach the President for this unlawful activity – is a central issue: Whether Congress will or will not force the President to assent to the rule of law.
Further, it is absurd for the DoJ to rely on the CRS memo as support. The CRS memo explicitly found that the Unlawful conduct had no legal foundation.
The basis for the court order in re Sealed Case is at odds with the President’s defense. The case is narrow, and in no way did it affirm any “recognized right” of the President to ignore the law. Had there been a “problem” with FISA, the time to have brought this up would have been in the wake of 9-11; on the contrary, the White House affirmed the very statute in now seeks to both ignore and discredit. This is absurd. It remains to be understood why the DoJ legal team was asleep in 2002; or whether they prefer to make updates on wikis rather than do legal research.
DoJ’s response is also defective in that it asserts a non-sense term: “Inherent authority” without providing any case law to justify that term. It remains to be understood which legal advisor in the White House worked with the House Judiciary committee. The challenge to this use of the term has not been recognized nor has it been timely justified or explained in light of the well known public challenges to the use of this term. DoJ fails to explain why there is any merit to the use of the “inherent authority” fiction.
DoJ asserts that CRS contention is without merit, without providing any credible case law to justify confidence that conclusions is correct.
DoJ fails to make the case that FISA does or does not have any relationship to power. Rather, FISA remains a lawful ministerial requirement and any discussion of power is outside the nexus.
It is absurd that the Court of review “took for granted” any “inherent authority” – if this was true then DoJ would have cited the specific language that affirmed this “inherent authority.” No such language exists, and any DoJ asserting that the court of review linked its ruling with this non-sense term is pure fictionalized legal jargon.
It is false to assert – after proffering a false argument – that no other court has argued otherwise. This is true: All the FISA courts have done is assert the rule of law; after which time the Executive ignored the court. That no court has “ruled to the contrary” is absurd – no court has ruled in support of this contention either; DoJ’s statements fail.
DoJ Response
As your question states, the FISA Court of Review discussed the President’s
inherent authority to conduct warrantless electronic surveillance in 2002, twenty-four
years after FISA was enacted. See In re Sealed Case, 310 F.3d 717 (For. Int. Surv. Ct.
Rev. 2002). In Sealed Case, the Court of Review considered whether the FISA Court had
statutory or constitutional authority to place restrictions on the interaction of criminal
prosecutors and foreign intelligence investigators as a condition for granting surveillance
orders. The Court of Review held that the FISA Court erred by placing those restrictions
on the Government. Because prior court decisions had suggested that this was a
restriction on the President’s constitutional authority, the Court of Review discussed the
Note 6 Elizabeth B. Bazan and Jennifer K. Elsea, 30 Congressional Research Service Memorandum: Presidential
Authority to Conduct Warrantless Electronic Surveillance to Gather Foreign Intelligence Information, Jan.
5, 2006 [hereinafter CRS Memo].
7 In re Sealed Case, 310 F.3d 717, 742 (FISA Ct. of Review 2002).
8 31 CRS Memo.
9 32 CRS Memo.
scope of the President’s inherent constitutional authority over foreign intelligence
surveillance and whether that authority could be restricted or enhanced by statute. In so
doing, the Court of Review recognized that the U.S. Court of Appeals for the Fourth
Circuit, “as did all the other courts to have decided the issue, held that the President did
have authority to conduct warrantless searches to obtain foreign intelligence
information.” CRS’s suggestion that the Court of Review somehow overlooked that it
was relying on pre-FISA cases, thereby undermining its analysis, is entirely without
merit. Indeed, the Court of Review was acutely conscious that the decisions it was
discussing involved pre-FISA surveillance, and the court noted that fact repeatedly, see
310 F.3d at 725, 726, 742. But that fact does not undercut the decision: the whole point
of the opinion was whether and to what extent FISA could modify the standards
governing the President’s inherent constitutional authority. On this point, the Court of
Review was clear: it “took for granted” that the President had inherent constitutional
authority to conduct foreign intelligence surveillance and “assuming that is so, FISA
could not encroach on the President’s constitutional power.” Id. at 742 (emphasis
added). In other words, according to the Court of Review, although FISA could
supplement the President’s power to conduct foreign intelligence surveillance, it could
not take away that power, which is vested in him by Article II of the Constitution.
Moreover, as your question correctly observes, no court since the passage of FISA
has held to the contrary. For these reasons, the President was entitled to rely on the
definitive pronouncement of the specialized court that Congress created to address
precisely these matters.
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.
Comment: No cases recognize any inherent authority. It is absurd to link a fictional terms with non-sense interpretations of a ruling and a non-sense question.
2. In holding that the President has inherent authority to conduct warrantless
surveillance, did any of the cases conclude this inherent authority did not
arise from the Constitution?
Commentary: It is legal fiction to rely on the January 2006 DoJ paper. DoJ is simply relying on non-sense from DoJ to assert that something is or is not legal. IT is an assertion – which is contrary to law – that the cited cases do anything to justify confidence in the President’s defense.
Rather, it is fiction to assert that any case support the notion of “inherent authority” or that there is anything that would recognize the do something that is contrary to the law. Bluntly, it is absurd to say that the Constitution permits warrantless activity; rather, these are exceptions to the warrant requirement – but the Constitutional requirement is not trumped in cases where there is no emergency, or imminent loss of life, matters of safety, or the risk that evidence will be lost. Rather, FISA explicitly contains provisions for a waiver – and a time frame which the White House affirmed post 9-11 – which compels the White House to obtain a warrant. The white hosue failed to meet this standard.
The Truong case does nothing to defend the President’s illegal activity. The citation fails to capture the central point of the Truong case. Whether the President is or isnot an authority on foreign affairs is irrelevant to whether the President is or is not violating the FISA on issues related to unlawful domestic surveillance.
That there may be a constitutional question is not the basis to hide evidence to avoid those COnstittioanal questions from being addressed.
All cases the DoJ cites in this question do nothing to inspire confidence that DoJ is serious in providing a credible defense for what the PRsident openly admits is a violation of FISA. Nowhere in FISA is there any restriction on the President to do what he wants to do to be commander in chief; rather, FISA is simply the sole means by which the President is allowed to conduct the otherwise illegal activity. As with the Patriot Act reprign requirements, the President openly states and has defied the ministerial duty. This is not a defense we need to consider seriously.
DoJ response:
Each of the cases cited in the paper of January 19, 2006 expressly grounded the
President’s authority to conduct warrantless surveillance in the Constitution. See United
States v. United States District Court (“Keith”), 407 U.S. 297, 308 (1972) (when
discussing the “constitutional powers of the President,” reserving any “judgment on the
scope of the President’s surveillance power with respect to the activities of foreign
powers within or without this country”); United States v. Truong Dinh Hung, 629 F.2d
908, 913-14 (4th Cir. 1980) (stating that the President’s authority to conduct warrantless
foreign intelligence surveillance arises from the fact that, “perhaps most crucially, the
executive branch not only has superior expertise in the area of foreign intelligence, it is
also constitutionally designated as the pre-eminent authority in foreign affairs. The
President and his deputies are charged by the constitution with the conduct of the foreign
policy of the United States”) (emphasis added); United States v. Butenko, 494 F.2d 593,
601 (3d Cir. 1974) (en banc) (explaining that electronic surveillance is a necessary aid to
the President’s fulfilling his constitutional responsibilities as “Commander-in-Chief of
the Armed Forces and to administer the nation’s foreign affairs” and stating that
congressional attempts to limit foreign electronic surveillance that “hamper the
President’s effective performance of his duties in the foreign affairs field would raise
constitutional questions”); United States v. Brown, 484 F.2d 418 (5th Cir. 1973)
2
(“because of the President's constitutional duty to act for the United States in the field of
foreign relations, and his inherent power to protect national security in the context of
foreign affairs, . . . the President may constitutionally authorize warrantless wiretaps for
the purpose of gathering foreign intelligence”).
Question 3
Says "legal holding" when the real question should be "precedent" and "appellate review."
Comment: It is an incorrect assertion to state that the issue is power; the actual issue is ministerial duty. FISA is the exclusive means by which this surveillance can occur.
There is no reasonable basis to presume that the Sealed Case implies any such power; or that any reasonable person could find any legal foundation to support the contention that the President can violate the law, or gather information using a means other than FISA. It remains to be understood how many other Programs the President has that violate FISA.
In short, there is no credible legal authority to justify violating the law; nor can any caselaw be interpreted to mean the opposite of what is Constitutional: That Congress shall have the sole power to make rules related to the US of US forces in service of the United States.
No reasonable person would draw any conclusion from the Sealed Case that the President has any power to ghater intelligence outside FISA when the United States citizens are involved. It remains to be understood whether the Presidente has violated other laws; or what other programs the President is using to unlawfully gather information;
Question 3. Is there legal authority to support the proposition drawn from the FISA
Court of Review’s decision in In re Sealed Case,10 that the President
continues to have the power to authorize warrantless electronic surveillance
to gather foreign intelligence outside the FISA framework?
Commentary on DoJ response: The correct terminology is “Unlawful NSA activity in violation of FISA”. It is a misnomer to call the NSA activity “intelligence surveillance activity.” This is non-sense.
Further, the Preisdent does not have the power to confirm that the NSA program – as known – is the extent of the unlawful conduct. Rather, the appropriate response is to address whether or not the ufll spectrum of Presidential conduct is inside or outside the law. DoJ confirms that the NSA activites are much broader than what the President has confirmed.
It is irrelevant whether the other target of the interception is or is not related to terrorism. The issue is whether or not the FISA statute was or was not followed. The Preisdent has the obligation to follow the law.
Anytime you read the term, “Terrosist Surveillance Program” read, “Unlawful NSA activity in contravention to clear ministerial requirements in FISA.”
It is an aswsertion – which DoJ has not proven – that the unlawful activity is or is not consistent with FISA.
Thus, it is to be proven – not explaline away when DoJ says, “we need not
consider whether the President may “gather foreign intelligence outside the FISA
framework” to conclude that the Program is lawful.”
Rather, the contrary is true: The President has the obligation to justify confidence that the PReisdent is or is not following the law; and it is irrelevant what the DoJ asserts – the issue is whether the conduct does or does not violate the law.
It is a red hering to argue over whether the acitivets s or is not lawful int erms what the court may or may not have said. Rather, the Statute has explcity stated what is required; and the DoJ assertions – of what the case law may or may not have said – do nothing to explalin why the President has failed to meet the clear requirements in FISA.
On the contrary: It is well within the scope of reasonable discusioin and inquiry – and something the pbuli should do – to consider why the President is violating the law despite the clear requirements to eh contray; and why the Exeuctive asserts that particular target are or are not outside FISA – when the FISA clearly states that the mode of interception, and target is irrelvent when dealing with issues of warrants, and domestic surveillance.
It is incumbent o nthe Congress to Consder whether the President is engaging in other ctivity outside the astaute; and one does not credibly assert the legality of a program on the basis of evidence not reviewed, and conduct not examined. Rather, the contary is true: The conduct – not the legality of the FISA – remains in violation of the law; and it is without merit to asser the program is lawful in lsight of the conduct which is outside FISA, as is required and not one of discretion.
The AUMF has no relationship to this matter. Hamdi case is only relevant in casees where there is no specific language. In the FISA situation, the FISA statute fills in the holes where the AUMF is open. Any relance on the AUMF is a sign the White House is relying on non-sense not a well founded legal theory at it defense. Nohting we read justifies confidence in the White House concern for the rule of law. Rather, the conduct and discussions had one goal: To circumvent the 4th Amendment requirements, thereby violating the Constitutoin and warranting impeachment.
DoJ incorrectly couches the Hamdi case; and wholly mischaracterizes wha the Supreme court has stated in re the specificity of rules under FISA.
It is curious, but irrelevant what President Rooselvelt and Wilson have done. Last tie mwe checked their Presidentcies ended at leat 40 years prior to FISA’s lawful enactment. Any mention of Presidential conduct prior to 1978 is merely an affirmation for why FISA was enacted: To assert the rule of law over wayward Presidents who need guidance.
DoJ undermines its defense when it cites languae showing that the authorized actions must be consistent with law – wich DoJ asserts was done; but the President asserts otherwise. Not only are DoJ and the Presient not on the same page, they are in different time zones and universes. One universe is the law; another universe is the President; and a third time zone is where the DoJ find themselves, in between wiki updates.
DoJ’s absurd assertion is that it can do something that violates the law basedon very loose language in use of force authorizeation. The law is clear in light of Youngstown that conduct must be lawful; and that Executive Orders must be consiten with the law.If ther was a problem with the law – as DoJ woud have us believe – the time to have done that was long ago; but this White Hosue did not compallin, it simply asserted the law as what they recognized as the requirement to meet, not one to epxlalin away with the non-sense below.
At no time did the AUMF authorize illegal activity.
DoJ asserts there is “substantaial authority” to use the “inhernt authority” – but this is a legal fiction. There is no term, nor is there any recognized “implied” power – the Consttution must specifically confer and delegate power, and no powers are implied. DoJ can cite no case law warranting confidence in their absurdities.
It is a false summaryu of the case to suggest that any caselaw permits the President to ignore the law; or that the President may violate the law; or that ther is any recognized power ot violate the law; DoJ fials to show that FISA encroaches on anything. Rather, it is the Exeuctive which encroaches on FISA.
The Butenko case does not find that the President has power to vialte the law; it only finds that there are situations where warrantless surveillance errors are still admissible. That a constituioal question may exist is not legal foundation to ignore the law or suppress the issue; rather, the issue belongs in the court to review.
Whther a statute did or did not precede FISA is irrelevant: The issue is what is in FISA; and which caselaw after FISA is conistent with that notion. That a case may or may not have said something about surveillance outside FISA – at a time before FISA existed is irrelevant.
Moreover, to suggest that the President’s power is at its “Apex” misses the issue of Youngstown: The law is the law – no President is above the law, whether it is an issue of power, ministerial duty, peace of war. That the Executive may not like the decision, or has failed to follow the law is irrelevant. Moreover, it is absurdy to consider seriously the DoJ statements: They offer us nothing to justify confidence in the Eecutive’s commitment to the rule of law; rather, they simply rly on on nonse-sen to defy the law. Nothing adds up.
There is no bonafide program called the “Terroist Surveilalnce Program.” Rahter there are other illegal actiiets and prorams outside this very narrow term; the correct ter is to spring off what the President openly stated: “The Unlawful activity in contravention to FISA.”
DoJ Response:
The NSA intelligence surveillance activities confirmed by the President involve
targeting for interception by the NSA of communications where one party is outside the
United States and there is probable cause (“reasonable grounds”) to believe that at least
one party to the communication is a member or agent of al Qaeda or an affiliated terrorist
organization (hereinafter, the “Terrorist Surveillance Program” or the “Program”). As set
forth below, the Terrorist Surveillance Program is consistent with FISA, and we need not
consider whether the President may “gather foreign intelligence outside the FISA
framework” to conclude that the Program is lawful.
Commentary on DoJ Response
The AUMF does not cover specific sitations which FISA does.
The Hamdi case only relied on AUMF because of the lack of specificity on how to deal with detainees.
The AUMF does not provide a means to trump FISA; it is only mentioned in the Hamdi case because of the vagueness of the AUMF on the matters ralted to FISA.
FISA does not suffer this shortfall. FISA is specific, unlike the AUMF.
It is overbroad and outside a reaonble application of the law to find that the AUMF conferred a power or permitted the Exeucive to violate the law as has been done. Rather, the AUMF and Hamdi do nothing authorize any actions – whether in or out of war – that violate the law, or create new exceptions wthin the FISA statute to justify illegal activity.
The AUMF did not create a new exception to the FISA warrant requirements; nor are there specific terms in the AUMF that expressly create a recognized exception to the warrant requirements.
It is absurd to suggest that the AUMF created some benchmark or precedent to ground futher legal arguments which violate the law; rather the AUMF is simply related to using power in a very narrow situation. It is not appropriate to use power in a manner that violates th Constituoin; or in a manner that falls outside statute and what is permitted during wartime.
It is irrelevant what other President have done – or how they have used or not used power. The issue before us is the ministerial requirement to get a warrant, unless there is a recognized exception. There is no recognized exception outside FISA. This Exeuive has crated new exceptions which the Congress has not recognized.
The Exeuives assertion of tehse exceptions constitutes an unlawful violation of the constitoin and an assertion of powers not delegated.
Whether other Presient have or have not engaged in warrantelss surveillance is meaingless. The FISA statute outlines exceptions to the warrant requirement. FISA does not prohibit an exeutive form waging waor; it simply defines how the warrant requirement may be ignored. This Exeucvie has ignored that exception and has created new exceptions.
Thestandard of evidence – of whether one is or is not an agent, and subject o warrantelss sufeilalnce under FISA as an exception tot eh awrrang requirement – is not satisfied on the basis of suspicion. Rhater, the standard is whether there is someone who is actually doingsoething that is linked with a foreign power. This is explicity in the Title 50 requiremnts in section 1801 and 1802 – both tin the defintions, and in the exceptions.
This White House has violated the law in order to gather information about Americans – and has done so in a manner that not only violtes FISA, but is at odds with the Constitutoin. The way forwad is to understand which evidence has been used or could be used to unalwflly intimidate Americans from asserting their ights, or enjoying the liberites we were once fighting for, but are now ignoring and destroying.
The telephone commanes have a problem. The issue isn’t whether the communiatios are intercepted; but why did they permit the wiretapping against Americans when they reaonbale should have known – and appear to have known – that the Americasn so targeted did not meet the definition of a foreign agent; and there exited no information to justifyincliding them on the NSA target list or wiretaps.
DoJ Response
The Supreme Court has explained that the Authorization for the Use of Military
Force of September 18, 2001 (hereinafter “Force Resolution”) must be understood to
have authorized “fundamental and accepted” incidents of waging war. Hamdi v.
Rumsfeld, 542 U.S. 507, 518 (2004) (plurality opinion); see id. at 587 (Thomas, J.,
dissenting). Consistent with this traditional understanding, other Presidents, including
Woodrow Wilson and Franklin Roosevelt, have interpreted general force authorization
resolutions to permit warrantless surveillance to intercept suspected enemy
communications. Cf. Curtis A. Bradley & Jack L. Goldsmith, Congressional
Commentary on DoJ Response
DoJ Response
Authorization and the War on Terrorism, 118 Harv. L. Rev. 2048, 2091 (2005)
(explaining that, with the Force Resolution, “Congress intended to authorize the President
to take at least those actions permitted by the laws of war”). The Force Resolution thus
authorizes the President to conduct the Terrorist Surveillance Program against al Qaeda
and affiliated terrorist organizations. FISA itself contemplates that a later enactment,
such as the Force Resolution, could authorize electronic surveillance because it provides
that electronic surveillance is not prohibited if it is “authorized by statute.” 50 U.S.C.
§ 1809(a).
Commentary on DoJ Response
DoJ incorrectly states what congress may or may not do – thereby drawing the lines on Congressonal pwer – but does not permit others to comment on Presidential power. [See question 4: “we need not demarcate the limits of the President’s constitutional authority.] This is a double standard.
There is no authority or caaelaw that states the Exeucgie may create new exceptions otuisde FISA to permit warrantelss surveillance.
DoJ fails to show that the existing FISA exceptions are insufficient; nor can DoJ show that the Congress can or cannot assert power relative to power which DoJ will not comment on in Question 4. This is another way of saying: DoJ would deny Congress the power to check Exeucive power. This is not constitutional.
DoJ ahs failed to show how creating an exception to the awrrant requirement – in an effort to protct rights and the 4th Amendment – does anyting to curtail power. That’s the intent of the Constitutoin: To ensure that power is not abused.
Whehter FISA or Congress do or do not curtail power is meaningless – the issue is whether the Exueicve will assent to the Consttutoinal limits inhererent in Article 1 Sectoin 8. This execuve does not assent to the limits; rather he violates the limits.
There is no basis to for DoJ to take for granted anything. The Execuvie may conduct warrantelss surivelance, but only when that surveillance is witin specific exceptions. Outidse those exceptions, the Exuecive has to get a warrant.
IT is a generalized assertion – not a specific case – to which the Exeucvie claims absolute power to engaerin warrantless surveillance. DoJ’s problem is that it asserts the power to engage in warrantelss sufeilvance in any and all cases, without mentioning the exceptions that reocbnize this power when it comes to very speicifc situations.
The issue is that the circumstances th Exeucvie says do not apply – in fact, fall well within the framework of FISA. The constitoins the Exzueicve says are not applicable – are wtin the excetoins wchi FISA precludes. This exceuvie is not asserting the rule of law; he’s assetgin gthe claim that he can abuse power without lawful consequdnces. That is absurd.
DoJ Response
In addition, substantial authority indicates that the President has inherent
constitutional authority over the gathering of foreign intelligence—authority that
Congress may not circumscribe. The Foreign Intelligence Surveillance Court of Review
suggested that, even after FISA, the President possesses inherent constitutional authority
that FISA could not limit. In re Sealed Case, 310 F.3d 717, 742 (2002). As the court
stated: “all the other courts to have decided the issue [have] held that the President did
have inherent authority to conduct warrantless searches to obtain foreign intelligence
information. . . . We take for granted that the President does have that authority and,
assuming that is so, FISA could not encroach on the President’s constitutional power.”
10 See 310 F.3d at 746.
3
Id.
Commentary on DoJ response
The President appears to wage unlawful war against American civlians. He uses military force and power against them to violate their rights.
The power to wager war is not the power to ignore the law.
Aremd Conflict aborad does not mean the Execuive has the power to ignore the law, even on the battlefield, or at home. HE rmeinas ubject to the rule of law.
It is not for the Exzeucive to decide whether the illegal activity is or is not outside the law. It is up to the court to decide whether the Exeucive conduct does or does not vialte the excetions. The Consttution does not confer on the Executive the power to ignore the law.
The FISA court is not a create of Congress: it is one that the Exzecuvie assented to, and has agreed to use. The issue isn’t whether Congress can or cannot affect what the President does; the issue is whether the power is used in a manner that is or is not consistent with the Constitution.
That the Exeucvie may want to collect inforation is irrelevant to whether he is obligated to follow the laws and abide by the constitution. There are waivers to the warrant requirement. The answer is not to self-waive whether those wiavers are or are not sufficient.
It is non-sense for DoJ to assert that Congress imposed any limitations; rather, the limitation is from the Constitution. It is true that FISA does not limit anyting – it merly defines how the warrants are or are not to be secured; and what exceptions those warrants can be waived. Those exceptions do not apply; the answer is not to ignore the exceptions.
The Execuvie hs the repsonsiblity to lawfully wage war; and lawfully interact with others. Congress does not create a power to do otherwise. Any assertion tthat any Act of Congress granted this power is not a reasonable inference, nor can any leader reasonably rely on any notion however convenient or desired.
It cannot be argued that following the law is ineffective – rather, it is what is required. One cannot use the sysmte of separated power as the exuse to assert that it is not effective to have power sepeparted – then assert powers not delegated. The powers were introduced to ensure they were not abused; the inefficienes are irrelevant to whether the constitution is or is not respected. The ineffeciicnes are the byproduct of abused power – asserting the need for “efficiencies and timelines” as we saw with Iraq’s WMD are simply excuses to wage reckless, illegal wars of expedience.
Statutes which preceded FISA are self-evidently irrelevant to whether FISA is or is not followed. Pre-FISA conduct is of no consequence to whether the existing statutes exist or are enforced.
There is no basis to assert the use of power against Americans is lawful or Consttutional; rather it is an abuse of power. Congress did not authorize power to be used; and congress has no power to authorize the illegal use of power.
Rather, FISA is simply a ministerial requirement on how the warrant is to be obtained; or the means by which warrants are determined to not be needed. There are not other exceptions to the means to review warrants; nor are there provisions “in another place” that permit warrantless surveillance outside the existing exceptions.
This Exeucvie imagines thigns that are not ther; and asserts power that he has not been Constittuiaolly delegated. This is at odds with our laws; and he shows no inclination to assent to the law.
DoJ response
This specialized court that Congress created for the very purpose of hearing appeals
from the FISA court is not the only court to suggest that the President maintains some
constitutional authority to conduct foreign intelligence surveillance that may not be
limited by Congress. The Third Circuit explained that the gathering of foreign
intelligence is essential to fulfilling the President’s constitutional responsibilities as
“Commander-in-Chief of the Armed Forces and to administer the nation’s foreign
affairs.” United States v. Butenko, 494 F.2d 593, 601 (1974) (en banc). Congressionally
imposed limitations on that power may so “hamper . . . the President’s effective
performance of his duties in the foreign affairs field [to] raise[] constitutional questions.”
Id. For that reason, the court interpreted a statute that preceded FISA as not limiting the
President’s constitutional authority to conduct foreign intelligence surveillance. Id.
These considerations are particularly pressing in the context in which the Terrorist
Surveillance Program operates; for, in a time of congressionally authorized armed
conflict, the President’s constitutional power is at its apex.
Commenatry on Question 4
The program is illegal. There are other programs that are also illegal. All legal foundations for the program are without merit.
The Exeucive does not have inherent authority to violate the alw; nor create new exceptions to the statutes and warrant requreemnts.
FISA is the exclusive means by which the surveillance is conducted; the Execuive does not have the power to create new exceptions; nor monitor Americans when they are not linked with anything. Rather, the NSA program is simply a system to gather information; and the NSA does use information gathered illegally as the basis to get warrants, and expand investigations. In some cases, the basis for the action is fabricated information; and Americans are targeted not because they have done anyting wrong, but because the US Government simply wants to go on a fishing expedition to fill in holes in their files. The Americans assume that anyting they do not know about is “proof” of something warranting an unlawful act. We have seen this approach regularly. Americans are accused of wrongdoing – and without evidence forced to explain why they are innocent. This is at odds with our nation of laws. The burden of proof – as with all things – is on the govenfment: Whyy should we bleive them; what are they doing to ensure that power is not abused; and rights are protected; and what is the government doing to provide the evidence to justify the violation of rights. They have no evidence, so they simply violate rights in order to possibly find a reason to abuse more. This is no different than the abuse at Gurantnamo, Abug Ghraib, and the Black Sties.
It’s been five years since 2001. This leadership has not prevailed. It is more concerned about perceptions than results. It is more concerned about the Afghan Consttutoin than the American Constituotin. The Amiercan government is not legitimate. It assents to unawflu conduct.
it is time to create a new Consttiutoin that solves the problems: Abuased power, failed to oversee, and the use of resources outside the law. There are solutions. The way forward is to ensure th power is lawfully used; not recklessly abused.
Question 4
4. In In re Sealed Case the Court of Review states, in part, “Even without
taking into account the President’s inherent constitutional authority to
conduct warrantless foreign intelligence surveillance….”11 The January 5,
2006 CRS memorandum asserts that one approach to interpreting this and
other Court of Review statements would be to interpret them “as referring
to the President’s inherent authority to conduct such surveillances outside
the scope of ‘electronic surveillance’ under FISA. In essence, the court’s
statements would then be seen as a reference to presidential authority over
those areas of NSA activities which were intentionally excluded from FISA
when it was enacted. Alternatively, it might be argued that the court’s
statements may refer to continuing exercise of inherent presidential
authority within the FISA structure, which the Court of Review found to be
constitutional.”12 Does the President adhere to either of these approaches to
support the program?
Commentary on DoJ Response
This activity is narrowly defined to excluse other illegal activity.
This program unlawfull monitors Amricans who are not within the exceptions f the FISA warrant requirement.
The President has created new “rationale” outside the law to engage in illegal activity. He does not have the power to craft new exceptions. This is a power only conferred to congress.
The issue is not whether Congress is or is not doing something; the issue is whether the Consttution will or will not be followed on matters related to:
DoJ afials to show why any mention fo Presidential power has any relevance to whether or not the laws have to be followed; whether the conduct is or is not a lawful ministerial duty; and why exceptions to the law are self-written to permit whatever the Execuive desires to do.
DoJ asserts that the NSA targeting is against the “declared enemy”. Yet, The White House and DoJ also admit that at least one of the NSA target is an American. Let’s consider what has been said: That they have asserted that the US citizen – without any reaosnble basis, simply because of a conversation – is an agent of a foreign power; yet this same tenous link was the basis to violate rights at Guantanamo.
IF we are to believe that the “declared enemy” are those who are targeted – then under the President’s definition – anyone that is an American and the Exeucvie “has a gut feeling, or believes” something about – is the enemy. That is absurd. This is not a bonafide basis to lead a country. Rather, a better way to way it would be, “The President is the enemyh of the Consttution and should be lawfully removed from office because of his high crimes.”
DoJ asserts absurdly that the AUMF permits something that is not lawful; it is fair to ask where the President plans to assert his power.
The limits of his authority are clear in the constitution: He may not write a law not grant himself new powers to ignore the laws.
There are limits to Presidential power and authority: He may not abuse his power; he may not assert th power of other branches; and he has no power to self-assert exceptions to the constitution which Congress has not recognized.
The AUMF does not permit illegal NSA conduct; nor does it allow the NSA to engage in surveillance in a manner that is outside the exceptions to the warrant requirement
The AUMF does not permit the larger NSA programs which also vilate the law; and it is reasonbalre to see where the President’s power ends, and where the Consttutoin clearly draws the line. That the President does nto like this answer is meaningless.
It is a mischaracterization of what NSA is doing by calling its activities “foreign” – the targets are Americans; the Americas are not linked with terrorism; and the basis for including them on the NSA target list is not in compliance with the Title 50 requirements; and the exceptoisn to these requirements are not lawful.
The President has unlawfully ordered NSA to target Americans who have no reaonble connection with any illegal conduct; the AUMF does not permit this violation; and it is not reasonable or approporiate that these violations of the law be endorsed.
DoJ Response
The Terrorist Surveillance Program does not rely on either of those rationales. As
described above, the Foreign Intelligence Court of Review analyzed whether and to what
extent Congress could augment the President’s inherent constitutional authority to
conduct foreign intelligence surveillance. By stating that “FISA could not encroach on
the President’s constitutional power,” the Court of Review made clear its opinion that
there are certain foreign intelligence surveillance matters for which Congress cannot limit
the President’s authority. Although the Court of Review did not describe the precise
contours of the President’s constitutional authority to conduct foreign intelligence
surveillance, see In re Sealed Case, 310 F.3d 717, 742 (Foreign Int. Surv. Ct. Rev. 2002),
the President’s authority is at its zenith with respect to the circumstances of the Terrorist
Surveillance Program. The President has ordered foreign intelligence surveillance of the
declared enemy of the United States in a time of a congressionally authorized armed
11 Id.
12 32 CRS Memo.
4
conflict. Because the Force Resolution authorizes the limited Terrorist Surveillance
Program, we need not demarcate the limits of the President’s constitutional authority.
Commenatry on Question 5
Question 5
5. Some have questioned whether President Carter’s signature on FISA in
1978, together with his signing statement, was an explicit renunciation of any
claim to inherent Executive authority under Article II of the Constitution to
conduct warrantless surveillance.
a. Does Congress have the authority to renounce any inherent presidential
authority?
b. Is there any case law that supports or proscribes Congress’ ability to
renounce inherent presidential authority?
Commentary on DoJ Response
DoJ Response
The Constitution is the supreme law of the land, and any statutes inconsistent with
the Constitution must yield. This basic principle of our system of government means that
no President, merely by assenting to a piece of legislation, can diminish the scope of the
President’s constitutional power. See New York v. United States, 505 U.S. 144, 182
(1992) (“The constitutional authority of Congress cannot be expanded by the ‘consent’ of
the governmental unit whose domain is thereby narrowed, whether that unit is the
Executive Branch or the States.”) (collecting authorities). Nor do we believe that
President Carter attempted to do so by signing FISA. President Carter’s Attorney
General testified at a hearing on FISA as follows: “[T]he current bill recognizes no
inherent power of the President to conduct electronic surveillance, and I want to
interpolate here to say that this does not take away the power of the President under the
Constitution. It simply, in my view, is not necessary to state that power, so there is no
reason to reiterate or iterate it as the case may be. It is in the Constitution, whatever it is.
The President, by offering this legislation, is agreeing to follow the statutory procedure.”
Hearing Before the Subcomm. on Legislation of the House Permanent Select Comm. on
Intelligence (Jan. 10, 1978) (emphasis added).
Just as one President may not, through signing legislation, eliminate the Executive
Branch’s inherent constitutional powers, Congress may not “renounce inherent
presidential authority.” The Constitution grants the President inherent power to protect
the Nation from foreign attack, see, e.g., The Prize Cases, 67 U.S. (2 Black) 635, 668
(1863), and Congress may not “impede the President’s ability to perform his
constitutional duty,” Morrison v. Olson, 487 U.S. 654, 691 (1988); see also id. at 696-97.
Congress certainly may obviate the need to determine the precise contours of the
President’s inviolable constitutional authority, see Youngstown Sheet & Tube Co. v.
Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring) (“When the President acts
pursuant to an express or implied authorization of Congress, his authority is at is
maximum, for it includes all that he possesses in his own right plus all that Congress can
delegate.”) (emphasis added). And that is the case here, as Congress authorized the
President to undertake the fundamental and accepted incidents of war, including signals
intelligence targeted at the enemy, through the Force Resolution
Commenatry on Question 7
Ther ein no inerent authority to vialte the law.
It doesn’t matter what was or was not done befofe FISA.
Question 7
6. Has any other President held that the President has this inherent authority?
If so, has any other President used such an authority prior to and after the
enactment of FISA?
Commentary on DoJ Response
There is no inhernant autority to violate ht elaw; nor create new exceptions to wararntless surveillance.
It is a red herring to say whether or not warrangless suveilalnce is permitted. It is allowed, so long as the conditions meet the exceptions.
The FISA court rejected tehse excpeiotns, abnad the WShite House ignored the FSIA Court.
What Presiddent Wilson did is irrelevant. The FISA did not exist; there was no rebnoized faramework to handle exceptiosn to the warrant requirement. This President in 2006 ignores those exceptions, and has created nw ones that are at odds with the law.
It doesn’t matter what Presient Roosevelt or Clinton did. The law applies to what this Execuvie is doing.
It is meaningless to rely on Gorelick’s statement – this is at odds with what the DoJ is now in hot water over.
Again, there iis no “inherent authority” to violate the law; nor create new exetions; nor engage in warrantless surveillance outsie FISA when US personsa are involved; nor to assert on the bassis of believe tha tosmeon emight be a foreign agent. This is speculation.
Warrantless surveillance must be consistent with the exceptions. It is a mistatmeent of the law and aintent of Congress to state that “these” activige are lawful or an exception to the awrrang requirement: This is a matter the FISA court already adjudicated they were not; there is no tbasis to assert that Americans – simply because they happen to interact with someone – is then linked to terrorism. This puts the same non-sense standard that was applied in Pakistan – and used to detain people who were simply accused for purposes of retataion – and does nothing to ensure that power is used against those who are bonafide threats. This is recklessness. This is at the heart of George Bush’s problem: He is reckless. We have seen this in Iraq. He cannot lead. He simply points to imaginary thigns and asks the world to respond.
It is time to make the Exeucive respond: He needs to be impeached. He need to be lawfully removed from office. He remains a threat to our way of life. He is not to be trusted.
There is something calld the Consttutoin. It is a document that outlines what poers We the People delegate. This President asserts he has powers that have not been delegated. He has ont been given the power to make laws, or create new exceptions; nor can he on his own say that this conduct is or is not lawful.
It is absurd to suggest this buffoon is concerned about the “rule of law.” That is a ruse. He’s more interested in doing what he wants, without regard to the law. That is not a leader. That is a reckless buffoon.
DoJ Response
Presidents long have relied on their inherent constitutional authority to conduct
foreign intelligence surveillance. President Wilson, for example, relying only on his
constitutional powers and a congressional authorization for use of force, authorized the
interception of all telephone, telegraph, and cable communications into and out of the
United States during World War I. See Exec. Order 2604 (Apr. 28, 1917). Similarly,
President Roosevelt authorized the interception of “all . . . telecommunications traffic in
and out of the United States.” The Clinton Administration also relied on inherent
constitutional authority in authorizing warrantless physical searches to collect foreign
intelligence information. Jamie Gorelick, Deputy Attorney General in the Clinton
Administration, testified before Congress in 1994, when Congress was considering a
since-enacted proposal to amend FISA to permit court authorization of physical searches
for foreign intelligence purposes, that the President has inherent authority under the
Constitution to conduct foreign intelligence searches in the United States without a
warrant, and that such warrantless searches are permissible under the Fourth Amendment.
See Amending the Foreign Intelligence Surveillance Act: Hearings Before the House
Permanent Select Comm. on Intelligence, 103d Cong. 2d Sess. 61, 64 (1994) (statement
of Deputy Attorney General Jamie S. Gorelick). See also In re Sealed Case, 310 F.3d at
745-46. The history of Presidents’ employing signals intelligence pursuant to their
constitutional authority is detailed in the Justice Department’s paper of January 19, 2006.
See Legal Authorities Supporting the Activities of the National Security Agency
Described by the President at 14-18 (Jan. 19, 2006).
Commenatry on Question 7
Congress has no power to confirm or deny the powers of other Branches. Nor does the Exeucive have the power to create power not expressly delgated.
The constitution does nto Grant the executive the power to create exceptions to the exceptions in title 50. He does not have the power to self-review whether the FISA court is or is not doing what should be done; this is a power exclusively conferred to another branch outside the Executive Branch.
There is no basis to assert that the AUMF created powers, or it trums FISA; nor does it in any way create anything that authorizes the President to violate the Title 50 requirements.
Warrantless surveillance is covered by Title 50. An AUMF does not create new exceptiosn outside statute; nor does the AUMF permit the Exeuciv4 to self-assign new exceptions. The law is clear in what constitutes a foreign agent; and the information before us shows the FISA court was ignored – contrary to what a reasonable executive should have done if they were serious about protecting the Consttution.
There is no inherent authority to violate the law; nor create new exceptions to he law or warrant requirement; nor any legal foudnatoin to assert wrongdoing without aevidence merely to surmount what was thought to be a a reasonable balance between pesona lrights and national security.
At this juncture, it is foar more likely the Exeucvie has done more of what was done at Guantanamo and simply asserted that there may be a believe, then used that as the pretext to violate trights, intrude, and assert there may be a basis to engage in illegal surveillance.
Question 7
7. The Department of Justice has stated that Congress has confirmed and
supplemented the President’s inherent authority by statute through the
Authorization for the Use of Military Force (AUMF).13 Please explain
specifically how the AUMF has “confirmed and supplemented”14 the
President’s inherent authority with respect to warrantless surveillance.
Commentary on DoJ Response
The AUMF is unconstitutional. It was based on fraud.
There is no inherent authority of the President to violate the law.
There is no credible link between what may or maynot have happened in 2001 and the unlawful use of US power against Americans in 2006.
The exceptions to the FISA warrant requirement are not satisifeid.
The AUMF is a red herring. The conduct is not appropriate. DoJ simply asserts that the unlawful activity is appropriate without showing that the Title 50 requriements are satisfied. This is not vidence, but an assertion which is unfounded and at odds with the long string of similarly worthless accusations made about prisoners held at Guantanamo.
The abuse of poople is unprecedented in American culture. Even British prisoners were treated with more respect in 1775 than are Americans under this regieme.
A right of “self defense” is not a right to leave Americans defenselenss before the government’s abuse of power.
There is no merit to any assertion that Americans are protected when they have their rights violated.
It remains a matter for th evoeters to decide whether the greater threat to their lifes is form abroad or the White House. The White house continues to engagein illegal conduct; this is extraordinary in that the Congress – supposedly the archict of the law – is silent as that structure is destroyed.
There is no credible basis to believe that the events of 2001 are connected to the absurd accusations made in 2006. The link is far too tenous; clearly, the higher priority people have already been deteained. They have proven to be nothing but flies. This late in the game, it is not credible to believe that the White House assertions of what is or is not going on in Iraq or in the US has any connection with reality.
People simply assert their right to stand up, not be clobbered into assenting to non-sernse.
The Americans choose to ignore the law as the basis to have us belive they are for the law. This is the same non-sense behind the Iraq invasion; and the disaster in Iraq.
Americans are being asked to gobble up more White house and DoJ non-sense.
There is no basis to say that the events of 2001 continue to pose any danger or justify any violations of the law. Rather, this late in the game, it is the job of the bungling Whtie House to explalin why – despite the outpouring of support in the wake of 2001 – the US has squandered that support, failed to assert the rule of law, and prevailed.
Rather, the US has no results because in all likelihood those behind the 9-11 attacks remain in the US government. It appears the goal of the NSA monitoring isn’t to protect America, bt to protect the war criminals inside the White House, DoD, State Department, and DoJ from accoutnabilty for what they planned, knew about, let happen, and assented to: A dictatorship.
Unfortuatnely for the White House goons, Americans have figure out the non-sense. We are in a postion to make adverse judgeements:
At this point, there is no reason to seriously consider what the White House is saying. They live in a fantay land. They create their own illusions. They have a mass of idiots in the RNC who assent to this non0sense; and Congress loves to the non-sense.
The way forward is to notice the defects in the US contitutoin, and outline a strategy to remedy those defects so this type of abuse cannot occur and is not permitted to go unchecked. The way forward is to dilute power, prevent the abuse of power, and compel Congress to choose: Between this unlawful rebellion against the Constituiotn or a New constttuion that will strip them of the powers they refuse to assert.
The game is oer. Americas have figure this out. DoJ and the Whtie House have no credibility.
DoJ Response
The Force Resolution “confirm[s]” the President’s inherent authority in this area
by expressly recognizing that the September 11th attacks “render it both necessary and
appropriate that the United States exercise its rights to self-defense and to protect United
States citizens both at home and abroad.” Force Resolution pmbl. The Resolution states
that the attacks “continue to pose an unusual and extraordinary threat to the national
security.” Id. Finally, Congress explicitly affirmed that “the President has authority
under the Constitution to take action to deter and prevent actions of international
terrorism against the United States.” Id.
13 See Pub. L. no. 107-40 § 2(a); 115 Stat. 224, 224 (Sept. 18, 2001) (reported as a note to 50 U.S.C.A.
§ 1541).
14 Department of Justice, 2 LEGAL AUTHORITIES SUPPORTING THE ACTIVITIES OF THE NATIONAL
SECURITY AGENCY DESCRIBED BY THE PRESIDENT, Jan 19, 2006.
6
Commentary on DoJ response
It is not appropriate to violate the law.
The link between those who acted in 2001 and American citizens is far too tenous to qualify as a bonafide exception to the warrant requirement. DoJ and NSA know the Title 50 requirements are not satisfied.
Te Consttuion is far braoder and powerful than what illusion the congress was induced to assent to in 2001.
The Hamdi case is irrelevant to whether FISA does or does not apply.
It is not recognized that the “use of force” included the vioatlino of Amreican’s 4th Amendment rights. If this is the case, then the White House must accept what it is saying: It has used the events of 2001 to wage illegal war on Americans, violate the laws of the land, and subject them to violation of rights without any lawful reason. What’s worse is many people inside DoJ, NSA, an dthe Joint Staff and Whtie House and RNC know full well what is going on and have assented to this non-sense.
Congress did not intent nor did it explicity authorize the President to ignore the law; nor does the Congstitutoin delegate or grant the Executive any power that gives him any recognized authority to vioatle the law.
DoJ continues to assert that the conditions are wartime. If we accept their notion – for the sake of argument – DOJ asserts that NSA force is being eimkployeda gainst American civlians. This is not lawful. It is not recogznied that the military force and tools may be used against civlians in a manner that violates the law. These are war crimes committed agginst Aemrican civlians.
The AUMF did not create a power outside the Constitutoin to ignore the law, or Constitional protectsion. It is fiction to assert vioaltnos fo rights is justified in wartime; what other President may or may not have done is irrelevant given the existing laws which regulate these ministerial acts. Whether other Executive did or did not vialte the law is of no consequence: We can only look at the case today and compare the donduct with the existing laws prohibiting this action.
Congress when it passes a bill does not incoropeate all previous illegal or unrelated activity; nor can the Executive rely on other events to do exactly the opposite of what Congress explicity states. This is not simply a violtionof the law, but ti is outside the power of the President to assert or employ; rather any argument the Execuive may or may not do something outside the law is contrary to our notion of a civilized society.
DoJ Response
The Force Resolution “supplement[s]” the President’s inherent authority by
authorizing the President to “use all necessary and appropriate force against those
nations, organizations, or persons he determines planned, authorized, committed, or
aided” the terrorist attacks of September 11th in order to prevent “any future acts of
international terrorism against the United States.” The Force Resolution is framed in
broad and powerful terms, and a majority of the Justices of the Supreme Court concluded
in Hamdi v. Rumsfeld that the Force Resolution authorized the “fundamental and
accepted” incidents of the use of military force. Cf. Curtis A. Bradley & Jack L.
Goldsmith, Congressional Authorization and the War on Terrorism, 118 Harv. L. Rev.
2048, 2091 (2005) (explaining that, with the Force Resolution, “Congress intended to
authorize the President to take at least those actions permitted by the laws of war”). As
set forth at greater length in the Department’s January 19th paper, signals intelligence is a
fundamental and accepted incident of the use of force during wartime. Moreover, when it
enacted the Force Resolution, Congress was legislating in light of the fact that past
Presidents (including Woodrow Wilson and Franklin Roosevelt, as noted above) had
interpreted similarly broad resolutions to authorize much wider warrantless interception
of international communications.
Commenatry on Question 8
Question 8
8. On December 19, 2005, USA Today reported that the President’s executive
order that authorized the surveillance program represented a “dramatic
shift from restrictions on domestic spying imposed after exposure in the
mid-1970s of NSA operations against U.S. citizens.”15
a. Is this claim substantiated?
b. Have previous Administrations, at the very least, recognized the
President’s Constitutional duty to authorize similar programs related to
national security?
c. The same article asserted that the Communications Act of 1934 as well as
the U.S. Criminal Code have provisions that limit or ban the interception
of electronic communications. How do these laws effect the President’s
prerogative to authorize the NSA program?
Commentary on DoJ Response
DoJ Response
The Terrorist Surveillance Program is narrowly tailored to target only
communications where one party is outside the United States and there are reasonable
grounds to believe that at least one party is a member or agent of al Qaeda or an affiliated
terrorist organization. The “reasonable grounds to believe” standard is a “probable
cause” standard of proof, see Maryland v. Pringle, 540 U.S. 366, 371 (2003) (“We have
stated . . . that ‘[t]he substance of all the definitions of probable cause is a reasonable
ground for belief of guilt.’”), and “probable cause” is the standard employed under FISA
for approving applications for electronic surveillance.
As explained in the Department of Justice’s paper of January 19, 2006, the
prohibitions on unauthorized surveillance set forth in FISA and chapter 119 of title 18,
15 John Diamond, NSA’s Surveillance of Citizens Echoes 1970s Controversy; Bush Denies Post-9/11
Order Clashes with 1978 Law Requiring Warrants, USA Today, Dec. 19, 2005, at A6.
7
United States Code, must be read in light of section 109(a) of FISA, which explicitly
contemplates that statutes can authorize intelligence surveillance outside the procedures
set forth in FISA. See Legal Authorities Supporting the Activities of the National
Security Agency Described by the President at 18-21.
Section 605 of the Communications Act of 1934 prohibits “divulg[ing] or
publish[ing]” the content or existence of interstate or foreign communications by wire or
radio. See 47 U.S.C. § 605(a). This has long been viewed as inapplicable to the
government’s collection of foreign intelligence. President Roosevelt determined that
those provisions do not prohibit federal government officials from gathering foreign
intelligence for use within the Executive Branch, because the gathering of such
information by the government does not constitute “divulg[ing] or publish[ing]” the
communication. On the basis of this legal determination, President Roosevelt ordered the
interception of “all telecommunications traffic” into or out of the United States.
Memorandum from President Roosevelt (May 21, 1940), reproduced in United States v.
United States District Court, 444 F.2d 651, 670 (6th Cir. 1971) (Appendix A).
Commenatry on Question 10
Question 10
9. In a January 6, 2006 letter from Professor Laurence Tribe to Congressman
Conyers, the Professor states that the National Security Agency program “in
question, far from being authorized by Congress, flies in the fact of an
explicit congressional prohibition and is therefore unconstitutional without
regard to the Fourth Amendment… The inevitable conclusion is that the
AUMF did not implicitly authorize what the FISA expressly prohibited. It
follows that the presidential program of surveillance at issue here is a
separation of powers as grave an abuse of executive authority as I can recall
ever having studied.”16 Do you agree that FISA “expressly prohibits” the
specific activities authorized under this program?
Commentary on DoJ Response
DoJ Response
We disagree with Professor Tribe’s assertion that the Terrorist Surveillance
Program runs into an “express congressional prohibition.” Section 109 of FISA itself
contemplates that intelligence surveillance can be authorized by statutes other than FISA.
50 U.S.C. § 1809(a). Thus, FISA does not define the universe of permissible intelligence
surveillance, and it does not close the door on subsequent congressional authorizations of
electronic surveillance. Indeed, it is doubtful that one Congress could bind future
Congresses in such a way. Instead, FISA reflects the understanding that later-enacted
statutes could authorize electronic surveillance as circumstances warrant.
The Force Resolution is precisely such a statute. In the Force Resolution,
Congress authorized the President to use “all necessary and appropriate force against
those nations, organizations, or persons” that “[the President] determines” to be
responsible for the September 11th attacks. In this context, five Justices of the Supreme
Court identified the proper mode for analyzing which powers accompany the Force
Resolution. They concluded that the Force Resolution satisfied a statute nearly identical
to section 109 of FISA, 18 U.S.C. § 4001(a), which prohibits the detention of United
States citizens “except pursuant to an Act of Congress.” See Hamdi v. Rumsfeld, 542
16 Letter from Laurence Tribe to Representative John Conyers (Jan. 6, 2006), at 2.
8
U.S. 507, 519 (plurality opinion); id. at 587 (Thomas, J., dissenting). Just as it satisfies
section 4001, the Force Resolution satisfies FISA’s provisions for statutory
authorizations for intelligence surveillance. For that reason, it is simply incorrect to
suggest that the Terrorist Surveillance Program “flies in the face of an explicit
congressional prohibition.” In his letter, Professor Tribe did not confront the wholly
analogous effect of the Force Resolution on 18 U.S.C. § 4001, prohibiting detention.
Commenatry on Question 10
FISA permits the Execuive to comply with the law. The Exeucive is not in a position to decide when the law should or should not be followed.
Also, there are situations -- even an emergency – where warrants could be gathered after the facts. This was not done. Despite the clear law, DoJ would have us belive that they were too busy to comply.
However, a clear review of the DoJ personnel computer access of non official business shows us that DoJ personnel were not busy; did have time to engage in non-official business during business hours.
Even if we were to believe DoJ’s excuse of “we were too busy” – this does nothting to explalin away the statute, or justify ignoring its requirements. Rather, it simply shows us that the best the DoJ can do at this point is provide exfuses.
That is a clear sign the DoJ has not accepted responsibility for what it is doing, and continues to do: Asssent to unlawful activity, far wider and more abusive.
No program on its face is legal or illegal. Rahter, the conduct is or is not consistent with the law. There is a different between a benign “program” and what is lawful.
Uin this case, there is a third factor: The conduct – that is both illegal, and above and beyond what is currently being discussed. Given all the excuses we have heard, and the focus on a very narrow definition of what is or is not in the program; a reasonable person could make adverse judgements:
Question 10
10. If FISA were read to prohibit the President from taking steps he deemed
necessary to protect the United States during wartime, would the
constitutionality of that Act be called into question? Please explain in detail
what constitutional problems or questions may arise if it were determined
that FISA, separately or in conjunction with the AUMF, prohibits the
President from authorizing the terrorist surveillance program.
Commentary on DoJ Response
You may not wage illegal war against Amreican civilians in a manner that violates the law.
There is no such thing as “inherent power”. All power must be expressly delegated. The Eecutive has no power to ignore the law; nor may he use military force in a domestic capabltiy for gathiner information for purposes of law enforcement. Rather, the conduct must be separated, and is under the control of the FISA court.
The AUMF does not authorize vioalations of the Consttution. There is no basis to assert that the targets of the full NSA activity is a certain mode of combatant. Rather, as we learn from Guantanamo, people merely asserted to be targets were then targets. That is not a credible basis to wage war, nor a credible basis to justify confidence.
YUou may not violate the law. You may not voialte the 4th Amendment. You amy not explalin away the Constitution.
There are no inherent powers of the Executive to vioalate the constitution.
It doesn’t matter whether someone is or is not an enemy; you’re targeting with military force and technology non-combatants in a civilian population in a manner that violates the law. That is a war crime.
“Constitutoinal avoidance” is not an excuse to ignore the Consttution. Rather, when there are issues of war crimes – and the offending war criminals who violate the law so fwar by waging unlawful war against a civilian opouation – the population is not bound by the laws which the offending party has violated. We did not choose this use of force: You did. Nor did we choose to violate the law – you did. Thus, we are not bound to follow the laws which you ignore.
It is too late to say that the consttutoin does or does not apply – you’ve openly stated by your actions, war crimes, and assertsions – that the law does not apply. Fine, then the constitution is not something we need to be bound by; nor are we required to assent to your unlawful use of military force against Americans.
Noone interprets the law in order to avoid having a violation of the law. Rather, the law as it applies during wartime is clear: You will only use this method to conduct this ativity. You ignored the law; so we are not bound by the law that mandates we assent to you non-sense, or your claim that you have any privileged to continue violating the law or escape scrutiny for your war crimes.
You are uusing legal bullshit. No wonder the Iraqis are defeating the Arrogan Americans: The Iraqis dare to call the arrogant Americans for their bullshit.
The Executive does not have the inherent authority to violate the law. The cited case laws to justify ignoring the law narrowly apply to situations which are unrelated to this situation.
DoJ absurdly asserts that it is prohibited to question whether or not the President’s conduct is or is not lawful. Whether the President chooses to assent to the rule of law is irrelevant; he has no choice.
National security is irrelevant to whether the American people are to be free from this abuse of power. You may not violate the law – abuse power, or violate rights – and credibly assert you’re doing anything to warrant confidence. Rather, you’re destroying the document but asserting all claims of that self-evient destruction need not be considered. You are idiots.
This is not an issue of what Congress is or isn’t doing relative to the PResient’ the issue is what the Executive is or isn’t doing relative to the constitution. He is violating it. Our rights are violated when he engages in this conduct – and goes outside the other branches to assert a power to violate the laws of the land.
The AUMF does not trump FISA; nor does the AUMF authjoirze illegal conduct outside FISA, Do provides no basis to believe that “their interpretation” of FISA has any relevance to what the Executive is or is not ignoring: The 4th Amendment and the US Constitutoin.
DoJ Response
As explained above, the Force Resolution authorizes the use of signals
intelligence against al Qaeda and affiliated terrorist organizations. But even if there were
some ambiguity with respect to whether FISA can be read, together with the Force
Resolution, to allow the Terrorist Surveillance Program, the President’s inherent powers
as Commander in Chief and as chief representative of the Nation in foreign affairs to
undertake signals intelligence against the declared enemy of the United States during an
armed conflict would require resolving such ambiguity in favor of the President’s
authority. Under the canon of constitutional avoidance, statutes are interpreted to avoid
serious constitutional questions where “fairly possible.” INS v. St. Cyr, 533 U.S. 289,
299-300 (2001) (citations omitted); Ashwander v. TVA, 297 U.S. 288, 345-48 (1936)
(Brandeis, J., concurring). The canon of constitutional avoidance has particular
importance in the realm of national security, where the President’s constitutional
authority is at its highest. See Department of the Navy v. Egan, 484 U.S. 518, 527, 530
(1988); William N. Eskridge, Jr., Dynamic Statutory Interpretation 325 (1994)
(describing “[s]uper-strong rule against congressional interference with the President’s
authority over foreign affairs and national security”). Thus, there is no need to confront
the question whether FISA would be unconstitutional if, contrary to the correct
interpretation of the Force Resolution and FISA, the Terrorist Surveillance Program were
somehow statutorily prohibited.
Commentary on DoJ response below
The esxecutive does not hat the authority to vilate the Constitution or the 4th Amendnetn. There is no delegated power in the Consttution to violate the constitution. Rather, there are explity oaths to preserve the document; and the requimrent in Article II Section 3 to ensure the laws are enforced.
What the Supreme Court may or may not explain has no bearing on whether the President is or is not violging the constitution. The PREsident cannot assert powers he is not delegated; nor may he assert the powers of another branch expressly delegated. In Nixon, the Presidentn was unable to persuad the court that ARtcle 1 Sectoin 5 powers – rule making and enforcement – could be ignored; this is an exclusive power dlegated to the Congress, and no rule can be challenged by the Executive.
Although there may or may not be relevant case law discussing what the President does on external relations, this has no bearing on what is or isn’t done in a domestic capacity.
There is no inhereant authority to violate the law. There is no delgated power to violate the Constitution. Article IV guarnatess the states a Constitutonal system. It is not alwful to claim that – in order to protect that system – the Presidnet may vioatle the system.
It is one thing to protect information. It is another to protect the Consttiution. This Eecutive wants to protect himself from accoutnablity for his vioations of the law. To achieve tha tend – after ignoring the law – he now asserts that his is doing the opposite. This is absurd. He has no regard for the law; his legal poodles in DoJ are buffoons, and the stated comments are at odds with the notion of a Constitutional System.
DoJ Comment
The constitutional problems that would be raised by a contrary interpretation of
the statute are serious. Article II of the Constitution vests in the President all executive
power of the United States, including the power to act as Commander in Chief, see U.S.
Const. art. II, § 2, and authority over the conduct of the Nation’s foreign affairs. As the
Supreme Court has explained, “[t]he President is the sole organ of the nation in its
external relations, and its sole representative with foreign nations.” United States v.
Curtiss-Wright Export Corp., 299 U.S. 304, 319 (1936) (internal quotation marks and
citations omitted). In this way, the Constitution grants the President inherent power to
protect the Nation from foreign attack, see, e.g., The Prize Cases, 67 U.S. (2 Black) 635,
668 (1863), and to protect national security information, see, e.g., Department of the
Navy v. Egan, 484 U.S. 518, 527 (1988).
Commenatry on DoJ commentary below
No precedent gives or confers power., That power can only be delegated expressly. There is no astatute that grants power. Rather, there is simply the requirement to to assent to the oath.
There is no inherent authority to do antying. The Execuive cannot authorize soething that violates the law. He has no power to permit vioalations of the law.
DoJ contradicts itself on inhereen tuathlirty:
The issue isn’t what Congress is or isn’t doing. The issue is the Constittuoin.
The language, “held that the President did have inherent
authority to conduct warrantless searches to obtain foreign intelligence information” – relies on the same non-sense of the Truong case which has been discredited as any legal foundation for what eh President is doing.
Here is the sealed case:
Click
The entire problems with DoJ’s assertion is that it relies on a FISA Sealed case that confirmed the procedures DoJ says the President can ignore. Read the last paragraph of the Sealed Case: “Accordingly, we reverse the FISA court’s orders in this case to the extent they imposed conditions on the grant of the government’s applications, vacate the FISA court’s Rule 11, and remand with instructions to grant the applications as submitted and proceed henceforth in accordance with this opinion.”
This does not mean that FISA is trumped; or that the President can ignore FISA; it means that in order to use electonric surveillance, the way forwad is to rely on the court.
Everything that DoJ has stated is at odds with this nation. Rather, DoJ simply casts FISA aside, and selectively cherry picks from the case. That does not inspire confidence. Nowhere does the FISA court say, “We are not longer relevant; rather, they affirm that FISA and the FISA court are the means to achieve this goal.” DoJ and the White House have done the opposite: Ignore the very language and legal foundation upon which they must assent, not ignore.
The problem with relying on the Truong Case is simple: The convictions were affirmed on the basis of having complied with the law.
We hold that the warrantless searches and surveillance did not violate the Fourth Amendment, that the espionage statutes were properly and constitutionally applied to this case [629 F.2d 908 ]
There is one major problem with relying on Truong: Truong occurred prior to FISA.
Also, the Truong case cites 50 U.S.C. § 1802 in footnote 4:
Click
There is also a distinction between whether there is or is not a foreign power or an agent of a foreign power: 50 USC 1801
Click
Let’s put aside the issue of whether the American-based targets are or are not foreign powers, and deal exclusively with the issue of the definition of foreign power in the context of the White House assertions and the NSA surveillance reported in the NYT.
If we go from the premise that the targeted person is discussing or communicating with a foreign power – and they are interacting with them – then the basis of that monitoring isn’t to determine their statuts, but to acquire information about their status. This means that the basis of surveillance is not certainty over whether they are or are not a foreign power; rather, it is merely asserted that because someone may or may not have a communiation that they then become part of the “foreign power definition.”
This is problematic. Simply interacting with someone does not then mean that we relinquish our rights; nor does it mean that we are under the foreign power exception as a foreign agent. The purpose of the warrant is to ensure that the surveillance – however distant or connected to lawful combat operations it may be asserted – preserves rights.
It is arguable that someone – because of their proximity – may be connected; but this is something that cannot be asserted, rather it has to be brought before the court to have the court review the reasonableness of that assertion. In this case, the FISA court did determine that the surveillance was not warranted and no warrants were issued as they might have been had there been a lawful requirement, or reasonableness. Rather than assent to the FISA court’s judgement on that matter, the Executive then took the great leap to assert that a simple communication was sufficient to meet the “foreign agent” exception; and then engage in warrantless surveillance.
Small problem: The FISA court already determined the connectedness was far too tenous, therefore they rejecting the warrant. The way forward isn’t to simply follow the law when it goes your way; rather, it is to permit the current of the court direct lawful operations. Had there been a bonafide reason to engage in the surveillance, the burden is on the government to show that the exception was bonafide; and the connection was something permitting the exception. Again, the FISA court rejected the evidence as insufficient to meet the requirements withing Title 50.
We also know – based on the lessons of Guantanamo, Abu Ghraib, and the interviews withthose released from unlawful detention – that the basis for the US Government’s assertion is simply that: AN assertion, and no evidence. The FISA court may choose to incorporate this information into the nexus as to whether the US agents and evidence has greater or lesser weight. IN this case, the long string of abuses by the FBI tipped the scale. IN short, because the government mislead the court, the FISA court was less inclined to believe the assertions about the foreign agent-power connection.
The US cannot credibly rely on ignorance – and lack of iformation – to assert the required foreign conection exists. Rather, this is a burden on the government to prove, not simply assert; and remains something the court may review as to whether the surveillance was or was not lawful.
Also, notice the stanards in 15 USC 1801(b)(2) – all the definitions include a term “knowingly”.
Means that an act was done voluntarily and intentionally and not because of mistake or accident.
Defn: Knowingly
This means that if someone simply speaks to a foreign national – they cannot simply – by that communcaiton – be asserted to be an agent, nor do they qualify as an exception to the warrante requirement under Title 50.
Rather, their conduct has to mount to something that shows they were knowingly doing something. In this case, simply talking to them doesn’t mean anything; and it could be soething else. It might be an issue, but this is to be gleaned using other methods.
It appears what’s happened is that the US has thought it found a loophole to permit the NSA to continue doing what it ddid during the cold war: Montor everything without regard to the laws.
The loophole is an illusion. In order to qualify as an exception to the warrant requirement, the President has openly admitted that hes simply monitoring those who are talking. That is not an agent; nor does it meet the Title 50 requirement of knowingly. There has to be something that is happening; soething that is going on; and something that is being advanced.
Rather, NSA and the White House – as they did with Guantanamo and Abu Ghraib abuse – relied on ignorance and lack of imformation to do several things:
The White House has asserted it has the power to decide whether the rules are or are not to be followed. This is at odds with our notion of civilized society.
Rather, Title 50 expressly outlies the exceptions permitting what the Executive would have us believe is occurring> But the fatal admissions show us the opposite:
As you read the entire DoJ arguments and responses, you’ll see fatal admissions related to belief. That is not sufficient to meet the higher standard witin the exceptions to the warrant requirements; rather, there has to be evidence that there is a knowing involvement in the larger objective – whateer that might be. DoJ does not use facts, nor do they rely on the law – rather, they assert they have the power to voatle tehl aw all the while asking us to believe they are preserving it. This is legal fiction and is at odds with a civilized society.
There is no difference between the abuse at Guantanmo Abug Ghraib and in the NSA program: All rely on assertions, all assert the power and “right” to voalte rights; and all are done without regard to reason, reasonbalneess, facts, or what are clear standards of conduct to the contrary. There is little difference between those in DoD who have been convicted of war crimes, and those in DoJ and NSA who have engaged in simlar abuses: Selefcively ignoring the law, manufacting exfuses, and creating legal non-sense to assert a superior “right” to ignore the standards of conduct which prohibited what was asserted to be justied.
There is no basis for the NSA action. Nor does DoJ have any defense. And those involved in the NSA program do so at their own risk of libailty. Your promised immunity cannot be relied upon. Those warrants were not issued as required; and you have known that the US persons so targeted had no rasonble connection to any action that would justify the illegal monitoring. There is no caselaw to justify vioations of the law, especially after the abuses which prompted the FISA statute.
People who are independent, and not under the control of a foreign power – namely simply engaging in regular interactions without any objective are not related to that power.
“Individuals who act independently of the designated foreign terrorist organization to advance its goals and objectives are not working under its direction or control and may not be prosecuted for providing "personnel" to a designated foreign terrorist organization.”
Ref:
USAM
Indeed, the Truong case permits warrantless surveillance; but this exception is outside the instant case: Namely, the President confirms that at least one of the Parties is a US citizen, outside the exception of 50 USC 1802. The President has no choice but to obtain a warrant.
DoJ Response
9
Based on that constitutional authority, the Department of Justice, in both
Democratic and Republican administrations, has recognized the President’s inherent
authority to authorize foreign intelligence surveillance. President Carter’s Attorney
General, Griffin Bell, testified at a hearing on FISA as follows: “[T]he current bill
recognizes no inherent power of the President to conduct electronic surveillance, and I
want to interpolate here to say that this does not take away the power of the President
under the Constitution.” Hearing Before the Subcomm. on Legislation of the House
Permanent Select Comm. on Intelligence (Jan. 10, 1978) (emphasis added). More
recently, the Foreign Intelligence Surveillance Court of Review recognized that the
President has inherent constitutional authority to gather foreign intelligence that cannot
be intruded upon by Congress. The court explained that all courts to have addressed the
issue of the President’s inherent authority have “held that the President did have inherent
authority to conduct warrantless searches to obtain foreign intelligence information.” In
re Sealed Case, 310 F.3d 717, 742 (2002).
Comment on DoJ
The President does not have the power to vialte the law nor the Constitution.
The President does not have the power to vioate the 4th Amendment. Whether the nation is or is not at war is irrelevant.
The issue is not what Congress is or isn’t doing; the issue is what the Eecutive is doing outside the law.
The executive has no credibilyt when he is “concerned” about the Consttituion. He has no rgard for the consttuion.
DoJ has not shown that the FISA requirements impede DoJ for the Exeu ive from doing anyting. Rather, despite the requirements DoJ personnel were still surfing the internet and looking at non-official business. If there was a “true impediment” DoJ would have been spending time discussing the issue with Congress to permit it to do what it supposedly could not do: Lawful support.
But we find no evidence to suggest that the non-official DoJ internet surfing is either a support of the Executive or a contribution to anyting; rather, Congress is not the issue. The way forwards is to ask why we in America should continue to give deference to a document which this Eecugie and Congress refuse to honor. Self-eviently, they have put it in the trash. It would be fitting if we simply put a lid on it, and stripped them of their power they abuse.
DoJ has not credibly argued that FISA impedes the Execuitive in doing anyting. IT does not prevent gathing information; it merely tells how that ministerial duty is to be fulfilled. This is like a law of war. DoJ would ask that we remain silent on violations of the alw; and that when the Eecuive deicdes he wants to assert power, we must assent to that assertion however devoid of legal foundation. Now DoJ can appreciate what inspires the Iraqis to stand up against the arrogant, hypocritical Americans who move without regard for the law abroad and at home: A desire to compel a counter party to live up to its agreements, not simply explalin them away as the weather permits.
It is crocodile tears for the Executive to claim that he is or is not doing a “Solemn” constitutional obligation. This is fantasy and laughable. He has no regard for the law.
His idea of an aoth is to swear to do what ever he wants, even in the face of the alw – knowing fully well the Congress can be induced to assent to his violations.
We have seen enough. It is time to lawfully revoke his power; and change the constitution into something that better protects rights, and preents the abuse of power.
This Execuive has abused power – he has waged war, has unlawfuly used power, and the Congress does not seem interested in asserting its power.
Then we need not grant deference to an Exectuive who vilates the law; and illegally asserts powers. Rather, the way forward is to revoke the power of the Exefcutive to claim any inhernt power to do anyting – and dilute his power into something that resmeles who he most resembles: A criminal.
Let the Eecutive claim he can do something. That claim can only be real if others are acting on that false claim. Those who act on these illegal orders are war criminals. You may believe that you can outlast the people; but Americans know you are the dsame gogs that commit war cimes in Guantanamo, Abu Ghraib, and at the black sties in Easter Europe and Africa. You are contemptable createures. You have no hope of being free unless you choose to see what you have: A dictators whose poodles in the DoJ are known to be in active rebellion against the rule of law. American are not to be trusted. You defy the laws. You bring contempt upon yourselves. You are disgusting, frivolous barbarians.
The American Whtie House StazFf, DoD, and DoJ have collectively chosen to rebel against the rule of law in Guantanamo, Abu Ghraib, Iraq, and now domestically. We can only imagine how many other voialtions of the law there have been. It is irrelevant that th targets ofthose vilations are unaware their right have been violated; rather, there is a large body of mindless idiots within the US government that know full well what is going on, have been caught, and want to prtend that its “not their fault.”
You have knowingly voalted the law; ignored your oths of office; and pleaded ignorance about thigns that no reasonable person in your filed could reasonable expect to claim ignorance. That your leadership is defective, or you rely on illegal orders is no excuse: A reasonable person should know that the basis for the surveillance was at odds with the clear requirements and exceptions within Title 50.
DoJ Comment
On the basis of that unbroken line of precedent, the court “[took] for granted that the President does have that authority,” and concluded that, assuming that is so, “FISA could not encroach on the President’s constitutional power.” Id. (emphasis added). It is important to remember that virtually every court that has concluded that the President has inherent authority to conduct foreign
intelligence surveillance did so during a time of peace. During an armed conflict, of
course, the President’s constitutional power is at its apex, making a hypothetical attempt
by Congress to interfere with the President’s inherent authority all the more
constitutionally troubling. Congress may not “impede the President’s ability to perform
his constitutional duty,” Morrison v. Olson, 487 U.S. 654, 691 (1988); see also id. at 696-
97, particularly not the President’s most solemn constitutional obligation—the defense of
the Nation.
Commenatry on Question 11
Question 11
11. The January 5, 2006 CRS Memorandum quotes a December 22, 2005 letter
from the DOJ Office of Legislative Affairs that says, “But under established
principles of statutory construction, the AUMF and FISA must be construed
in harmony to avoid any potential conflict between FISA and the President’s
Article II authority as Commander in Chief.” The memorandum, however,
concludes, on this point, that “It is unclear how FISA and the AUMF are
seen to collide. Principles of statutory construction generally provide
guidance for interpreting Congress’s intent with respect to a statute where
the text is ambiguous or a plain reading leads to anomalous results; and
where possible, a statute that might be read in such a way as to violate the
Constitution is to be construed to avoid the violation. However, such
principles are only to be applied where there is a genuine ambiguity or
conflict between two statutes, and where there is some possible reading that
might avoid a conflict.…”17 A contrary view has been presented by
constitutional scholar Robert Alt, that “if from some reason a court finds
that there is a conflict between the AUMF and FISA, then standard rules of
statutory interpretation suggest that the AUMF must control. Specifically,
the AUMF contains a savings clause, making clear that the statute does not
17 41 CRS Memo.
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intend to impair the operation of the War Powers Resolution. See AUMF, §
2(b)(2) (Nothing in this resolution supercedes any requirement of the War
Powers Resolution.). The canon of expressio unius est exclusio alterius
requires that Congress, having created an express exception for a statute
intended to limit Presidential power, must have excepted FISA if they
intended to exempt it from any conflict with the AUMF. They did not, and
so the AUMF must control if the statutes are seen as conflicting.”18 (See
enclosure)
a. Which analysis is correct? Please explain why you agree or disagree with
these analyses.
b. Do FISA, the AUMF, and the NSA program conflict?
Commentary on DoJ Response
DoJ’s assertions are absurd. The FISA and AUMF are irrelevant to eachother. The AUMF is general language; and FISA Is exclusive.
Nowhere in the AUMF is there a provisoin which permit the law to be violated; the AUMF is unrelated. The FISA specifically addresses wartime, and the AUMF does not trump the wartime provisions within the FISA.
DoJ asserts without credible foundation that their interpretation is correct. Their assertion is abusrd.
DoJ REsponse
It is not the position of the Justice Department that FISA and the Force Resolution
“collide.” Indeed, the Force Resolution and FISA are perfectly consistent with each
other. By expressly providing that other statutes may authorize electronic surveillance,
FISA contemplates that statutes such as the Force Resolution could authorize electronic
surveillance—outside the procedures of FISA. In this respect, the Force Resolution is
precisely the type of limited, context-specific authorization that FISA anticipates during
periods of armed conflict. Thus, interpreting the Force Resolution and FISA to permit
the Terrorist Surveillance Program is not only “some possible reading,” it is the correct
reading.
Comment on DoJ Response
What the AUMF does or does not authorize is not specific enough to warrant ignoring FISA. FISA does the opposite what DoJ asserts: During wartime the FISA is the exculisive means.
Whether the Constitution is or is not clear is not a basis to ignore FISA. DoJ cites no caselaw to justify that ambiguity warrants confidence that the President may violate the law. The objective of the law is to guide behavior; DoJ would have us believe that in search of an excuse, we can appeal to ambiguity as the basis for criminal conduct.
DoJ has provided no basis to justify why the ambiguity exists, is real, or what basis they used to justify the assertion that the ambituty – if it exists – should side one way or the other; or whether the ambitutiy is relevant. DoJ has not empahitically stated that ambiguity is relevant; or that the states or caselaw do or do not say antying – rather they merely suggest there is a suggestion of something. That is not a credible basis to justify action.
DoJ’s problem is that it has asserted there is nothing in FISA to prevent the AUMF from trumpgin FISA, and has earlier stated there is no specific mention of what is or is not permitted. DoJ contradicts itself in the following information because the nature of the program has been merely asserted, not proven – nor is there any reason to believe that the narrowly defined program accurately emcompasses what is at odds with statute.
DoJ now changes the nature of the program from whether ti can or cannot engage in it – on the basis of belief, reasonablness, or probabler cause – to whether the activity is or is not linked with national sefcurity. The distinctions are meaningless: The FISA is the exclusive means by which the conduct is manged, oversee, and regulated.
DoJ would have us believe that the ambiguity – that they rely on to do one thing, or ignore the law – is then not big enough to warrant a contrary conclusions as to whether the conduct is or is not regulated. DoJ cannot decide what ambiguity means because this ambiguity is irrelevant. DoJ absurdity asserts that there is no ambiguity; and that the FISA is clear: Indeed, it is clear, it was clearly ignored; and the AUMF is not releveant to whether FISA is or is not trumped.
DoJ Response
The Force Resolution authorizes the use of intelligence surveillance as an incident
of force directed against al Qaeda and affiliated terrorist organizations, and FISA permits
such future authorizations by Congress as circumstances warrant. The canon of
constitutional avoidance comes into play only to the extent that the proper interpretation
of these statutes is not otherwise clear. It suggests that, insofar as there is any ambiguity
whether FISA, read in light of the Force Resolution, authorizes the Terrorist Surveillance
Program, that ambiguity must be resolved to allow the President to authorize the Terrorist
Surveillance Program—an early warning system critical to the defense of the Nation.
Here, however, we do not believe that there is a “genuine ambiguity,” because the
authorization of the Program by these two statutes is clear.
Commentary on DoJ Response
The Hamdi case is irrelevant. Professor Alt is not on the SUreme Court. Whether the AUMF does or does not contradict with the FISA has no bearing on whether FISA is the excslive too.
DoJ has yet to justify confidence that the AUMF is constitutional. It is absurd to suggest that the AUMF expressly or does not expressly do anything to trump FISA – it does nothing of the sort.
If the Canon cited were bonafide, there would be no suggestion, but a bonafide determination; DoJ’s argument tfaisl.
DoJ’s respons is gobbly goop: This means nothing, “Under the expressio unius canon, the Force Resolution’s explicit preservation of the War Powers Resolution suggests that other statutes that would limit the President’s use of “necessary and appropriate force” would yield to the Force Resolution.” DoJ has provided no information to show that the “limtigation on power” has any relevance; FISA remains the exclusive tool to regulate the illegal activity DoJ asserts – without proof – that the AUMF does or does not relate to the War Powers Resolution. Whether the AUMF does or does not trump FISA is not in question: It does not. DoJ fails to show that the unlawful ctivty is both necessary and approrpaite; nor is there any caselaw cited to justify why it is “appropriate” to do soethjing that is illegal. There is no basis to believe that the contrcut would mandate that the specific FISA get trumped by the vague AUMF.
DoJ response
Finally, we believe that Professor Alt’s reasoning provides yet another reason to
interpret the Force Resolution and FISA together to authorize the Terrorist Surveillance
Program. To the extent that some have argued that FISA stands as a virtually immovable
barrier that must be repealed or specifically amended, Professor Alt’s analysis goes some
way to establishing that such is indeed the effect of the Force Resolution. The Force
Resolution expressly preserves a statute that purports to limit the President’s discretion in
a time of war. Under the expressio unius canon, the Force Resolution’s explicit
preservation of the War Powers Resolution suggests that other statutes that would limit
the President’s use of “necessary and appropriate force” would yield to the Force
Resolution.
Commetnary On DoJ response below
FISA in no way limits what the President can or cannot do: It simply tells him how the methods are to be used in war time.
That the conduct may or may not be related to AUMF is of no relevance; the FISA explicity states how the conduct is to be regulated during wartime. The President ignored this requirement. The FISA is no different than a law of war. War powers do not permit the use of force that violate the law; pwer is not restricted with the law, it is merely shaped and guided to be employed in a civil manner. The issue is that this power is being unlawfully used against Americans outside the law and in contravention to the means by which the Execuive agree to use that power. This is not an issue of a limigation of power – but whether the SExecutive will or will not assent to a alwful ministerial requirement in what he does. FISA is the agreed mechanism that will be used in wartime to regulate how this conduct is to occur.
That the President may desire to do something – devoid of the law – is irrelevant to whether that standard or requirement exists.
Whethre Hamdi did or did not say anything is irrelevant to the FISA. The AUMF and Hamdi are only linked because of their vagueness on the specifid issu;e unlike the AUMF which was vague on the situation, the FISA was explicity.
Whether an interpretation is or is not consistent with Hamdi is irrelevant; one cannot use an irrelevant construct to trump something that is relevant.
It doesn’t matter how many justices did or did not agree on the Hamdi case; the issue is whether the FISA will be recognized. In this case, the Executive has clearly subverted the rule of law.
Wheter detentions are or are not mentioned in Hamdi is irrelevant to whether FISA is or is not specific. That something may or may not have been mentioned in the AUMF is irrelevant to whether the FISA is specific.
Whether a member of the academic community does or does not agree has no beareing on whether or not the statute existed as the exclusive means to do smoething.
There is no caselaw to justify why the view of a professor – at odds with the staute – can trump that statute. This would ask that we justify non-sense simply because someone justified non-sense. That is circular. It is equally plausible that the FISA after trumping the AUMF would contribute to the AUMF being found unconstititonal by a competent legal tribunal, well outside the control of DoJ. That DoJ may not like that ruling is irrelevant. Suck it up.
The FISA does not prevent the President from doing anything; it merely guides him how to do what is or is not lawful.
DoJ fatally admits that military force is being used: This is a clear vilation of the Posse Comitatus Act, and smacks of the same abuse by the British Monarchy in using troops to illegally harass Americans.
If the DoJ wants to assert that the laws of war apply – and that military force may be used in this manner – regardless their connection to an enemy, or their proximity to a statute – then the Pulibc can make the adverse infercence that US military force is being unlawfully used against civilians. This is a secondary war crime. If DoJ would have us believe – as does appear to be the case – that it may legally justify the use of the military force against American cviilans – in a manner that violates the law – then the public is not longer bound to assent to the very laws which DoJ has violated: Namely, the US constitution, or the provisions in any law of war which DoD and the NSA are violating.
DoJ needs to be very clear whether it is or is not advocating that the current use of American military force – however far removed from the battlefield – may or may not be lawfully used outside the laws. If that is the case, then the public need not seriously consider the American Government legitimate; it violates the laws to illegally use power and force in violation of the law; and the public need not lawfully assent to that use of power; nor recognize any power that relies on those violations; nor does the pubil have to be bound by any laws which DoJ and the White House are violating.
The laws of war – if DoJ is saying what it means – if they are to apply, then those laws of war when they are ignored – when it comes to matters of use of military force and technology against civilians – rmoves the cilvian popoulatiosn requirement to assent to the laws of war which the DoJ, NSA, DoD and White House say they do not eneed to follow.
DoJ has a problem. It is arguing that it is persmissible to vialte the laws of the land for the purposes of waging war; this power and military force being used illegally against Americans would then mean that all Americans are not bound by the requirement to assent to the laws of war which DoJ asserts DoD and the NSA are waging on Americans.
DoJ has fatally argued against itself. By arguing that the war is waged, it fatally admits that the conduct which violates the laws of war would tehn remove the restrictions on Americans who no longer need to be bound by the laws which DoJ, the White House, NSA , and DoD not longer respect.
This is another way of saying that the DoJ has asserted that they may use unlawful force to violate Americans rights and ignore the Constituton; thus, under the laws of war – which the DoJ asserts is the basis to ignore the laws – the American poele are not longer bound by the Constittion which the DoJ says can be violated and ignored.
Congratulations DoJ: You have fatally admitted what we have long suspsected: That DoJ, the White House, DoD, and the NSA have nad are waing an ulnaful war against Americans in violation of the constituotin; but you have the audiacity to expect that American will continue to find you legitmatie. ON the contrary, once you violate the laws of war – Americans are no longer bound by the agreements an dlaws you ignore. This means the US Constitution – because it is something DoJ does not honor and violates – the US population need not honor.
You can’t have it both ways. You can’t compe la nation to assent to the laws of war you ignore; nor may you compel a civilian population to put up with your non-sense: Either the laws of war do or do not apply; if they are followed, then the population may recognize in a reciprocal manner those laws you follow. Once you fatally assert that the White House is waging a war – and that war is then waged against Amreicans by vioatign their constitution – then the constitution ceases to be any basis for your power, nor is it a foundation you can rely on as a defense, nor as a rallying cry to distract attention.
You have fatally admitted that in ordert assert power, you may violate the Constitution, and subjsequently use armed force and techonloyg against Americans in order to keep them free from – what? Not you.
DoJ has fatally admitted that it is the enemy of the Constrituion; that the White House is waging an unlawful war against the American people; and that the White House wants to ignore the Constituion, all the while asserting that that Constition is the basis to justify more violations of the law.
Congratuations: You have effectively trashed the constituoin. We need only put a lid on it, and move forward: With a New Consttutoin that will forever bar you from doing what you are doing: Using legal bullshit to violate the law, and expect the population to assent to your non-sense. Time is up. We have figured you out. You do not have legitimacy. You have openly admitted you have contempt for the law; and your assertion that you are waging a “war” to keep us safe is absurd: You are the enemy; you are the threat to the Constition; you have not confidence in the rule of law; and you openly defy the law.
DoJ, White House, Congress, NSA, Joint Staff, and the DoD have openly bragged that they will ignore the law and wage wawr on Ameriacn people. Thus, in combat when one party ignores the laws of war, the others are not bound by that law.
The americna people are free form the constratin of this current constituton; we need no trecognzie your power, and there is no legal foundation for you to continue your unlawful use of military force against the public. On the contrary, it remains to be udnersrtood throughdiscovery to what extent you have used the likely expefctation that your power will be reovekd as the absurd basis to argue that you can take pre-emptive action against those who dare notice what you are: An enemy of the Constitutoin. You can go fuck yourselves.
DoJ Response
In this way, to the extent that FISA actually limits the President’s ability to
employ signals intelligence—a fundamental incident of the use of force—against the
18 Letter from Robert Alt to Chairman Sensenbrenner (Feb. 3, 2006), at 8.
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declared enemy of the United States, the Force Resolution would vitiate those
restrictions. That reading is consistent with the decision in Hamdi, where a majority of
the Justices concluded that the Force Resolution satisfied a statutory restriction on
detention (18 U.S.C. § 4001) that was nowhere mentioned in the Force Resolution.
Professor Alt’s reasoning provides still more justification for concluding that the Force
Resolution would, if necessary, repeal FISA to the extent it prevents the President from
making use of the fundamental and accepted incidents of the use of military force in the
armed conflict against al Qaeda.
Commenatry on Question 12
It is a fiction to narrowly define the NSA activities as “terrorist surveillance.” There are other activites which are not connected to this narrow defintinon.
IT is impossible to explain how the NSA activites which ignore the FISA are consistent with FISA.
The FISA language – and the question – explicity state the exclusive means by which the conduct is to occur.
Question 12
12. Please explain how the NSA terrorist surveillance program relates to FISA.
In doing so, please explain how the program — which operates outside the
context of FISA — is consistent with FISA, given that FISA — provides it
shall be the “exclusive means by which electronic surveillance, as defined in
section 101 of [FISA], and the interception of domestic wire, oral, and
electronic communications may be conducted.”19
Commentary on DoJ Response
Notice what DoJ has done when they mention the definition of “electronic surveillance.” They narrowly apply that definition to a legal analysis.
It is absurd that DoJ asserts that the standard is or is not being followed by saying they cannot “disclose” sensitive classified information. Either the activites do or do not violate the law.
DoJ REsponse
Before answering this question, we note that the Department’s legal analysis
assumes, solely for purposes of that analysis, that the targeted interception of
international communications authorized under the Terrorist Surveillance Program would
constitute “electronic surveillance” as defined by FISA. As noted in our January 19th
paper, we cannot confirm whether that is actually the case without disclosing sensitive
classified information.
Commentary on DoJ response below
DoJ is citing the “other statute” non-sense. Exclusive means is the same as outlawing all other activites which do not follow these procedures; and there is no relationship between AUMF and the FISA. FISA is specific, AUMF is generalized and has no relevance on what does or does not happen in the United States.
Using the White House’s non-sense we would have to believe that the war will continue forever, and whatever they want is legal simply by assering a belief that it might be something related to “whatever they want.” This is ambiguous.
DoJ uses a non-sense analogy, a very narrow situation, then incorrectly assumes that the rule would apply in reverse. This is an absurd line of thinking
DoJ uses non-sense as to whether FISA did or did not contemplate a method, without regard whether or not the statute has any relevance to whther that method is used.
To assert that no court has or has not found that a method of interception is or is not outside FISA has no bearing on this case: The method is outside FISA.
DoJ Response
Section 2511(2)(f) of title 18 states that the “procedures in [chapter 119 of title
18] and the Foreign Intelligence Surveillance Act of 1978 shall be the exclusive means by
which electronic surveillance, as defined in section 101 of such Act, and the interception
of domestic wire and oral communications may be conducted.” But this provision must
be read together with FISA, including section 109(a). Section 109(a) expressly
contemplates that another “statute” can authorize electronic surveillance and thereby
expressly incorporates such future enactments into the FISA framework. Section 109(a)
is a means within FISA, and thus reliance on the Force Resolution satisfies section
2511(2)(f)’s admonition that FISA is the “exclusive means” for conducting certain forms
of electronic surveillance. Reading FISA to permit electronic surveillance authorized by
another statute makes particular sense because, as detailed at pages 22 and 23 of the
Department’s January 19th paper, at the time of FISA’s enactment, provisions of law
besides FISA and chapter 119 of title 18 authorized the interception of “electronic
surveillance” and there is no indication that FISA purported to outlaw that practice. For
example, in 1978, use of a pen register or trap and trace device constituted “electronic
surveillance” under FISA. While FISA authorized use of pen registers, chapter 119 of
title 18 did not. Thus, if FISA did not contemplate electronic surveillance authorized
under another statute, the use of pen registers other than to collect foreign intelligence
would have been illegal. That cannot have been the case, and no court has held that pen
registers could not be authorized outside the foreign intelligence context.
19 18 U.S.C. § 2511(2)(f).
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Comment on DoJ Statement
The President is illegally asserting a power reserved for the Judicial Branch: Namely adjudicating that an Act of Congress is unconstitutional, and has ignored.
It is up to the court to detmerine whether or not the Congress did or did not intend to do anything.
DoJ’ asseriong that the FISA may or may not prevent surveillance is at odds with the explicit language in FISA granting the President the tools to engage in the surveillance. FISA affirms the Executive’s war making power, so long as that power is lawfully asserted.
DoJ recognizes the language which explicity told the President what was not lawful. The White House has asserted – without evidence, and has failed to appear before the Court which Congress authorized to review these matters – that the rules are not to be followed.
DoJ’s comment does nothing to support the President, but relies on the language amd Congressional which the President has ignored.
DoJ Comment
This reading of section 2511(2)(f) is also supported by its legislative history,
which indicates an intent to prevent the President from engaging in surveillance except as
authorized by Congress. Although section 2511(2)(f) mentions only FISA and chapter
119 of title 18, the House Conference Report explains that section 2511(2)(f) set forth all
then-existing statutory restrictions on electronic surveillance and cautioned the President
not to engage in such surveillance outside of congressionally sanctioned parameters. See
H.R. Conf. Rep. No. 95-1720, at 32, reprinted in 1978 U.S.C.C.A.N. 4048, 4064. It was
not directed at restricting the manner in which Congress could subsequently authorize
electronic surveillance.
The authority is not lawful, recognized, nor has it been delegated.
NSA and the Joint Staff know full well these military operations are illegal, and constitute a war crime against civilians.
The scope of the NSA monitoring started before Sept 2001, and any argument that the illegal doncut is linked with anything justified is absurd.
The Joitn Staff are war criminals. Their authority is not legal; and should not be recognized. They are unlawfully using military power and technology in violation of the law. All funding used to support thi conduct is a violation of Article 1 Section 9 – and has been unlawfully expended on illegal purposposes.
Contractors and personnel within DoD contracting community know full well that the conduct violates the law. They have no defense. They are living in a dream world. They have no legal authority to engage in this conduct; and the basis for which they are being paid or given any respect is based on illusion.
The NSA cannot rely on any “authority” that is illegal.
There is no linkage between the NSA and DoJ – nor does the “balanced reliance” on illegal authority lay the foundation for anything that is lawful or should be recognized.
Rather, DoJ – by admitting or suggesting linkage between DoJ and NSA on this authority – demonstrate there is a meeting of the minds to violate the law. This is called a conspiracy; and their objective is to assert powers that are not lawful; and to assert authlrity that is not linked with anything that We the Peple have lawfully delegated to them.
Their authority need not be reocognzied; rather their conspiary to violate the law is simply evidence that they have no intention of assenting to the rule of law, fact finding, and are not reliable as a source of information, guidance, or anything resembling coherent legal arguments.
DoJ and NSA Genearl Counsel have proven themselves to be unreliable.
The DoJ cannot rely on anything as a foundation for any authority other than lies, twisted sarguemtns, and non-sense. Whether the NSA does or does not do something is unrelated to whether the DoJ does or does do something.
The fact that NSA may or may not be doing something does not create a power that DoJ is subsequently deprived. This is an illusion. NSA cannot self-delegate power; nor can DoJ claim that the “power that NSA took” should be recognized; this is absurd. The power and authority to violate the law never existed; so there is no basis to claim that the NSA “use of illegal power and authority” needs to be balanced by DoJ’s “balanced assertoini of equal illgal power.” This is illegal. It is contrary to the law. We have not deegated power to the NSA or DoJ to assert such powers; nor do they have the authority to issue contractos, make statements, or suggest to anyone that these orders are illegal.
The Jonit Staff are war criminals. They unlawfully use military force against American civilians.
DoJ and the NSA were not given any power or authority to be assholes, jerks, or bumbling morons. Rsather, they took an oath to the Constituoin and they defy their oaths; they are in rebellion and the lawful govefnment authorities – if they decide to awaken from their coma – should lawfully order them to refrain, cease, and desist from asserting this illusory power.
Rather than surfing the internet and engaging in unofficial business on government time – while they are being apdi to engage in war crimes – the NSA and DoJ personnel should read the Consttution, study it, and ensure their conduct is consistent withthat document. But they do the opposite – indicating they are poorly disciplined, have no concern whether they are or are not being monitored; and their leadership obviously has no concern whether they are or are not doing something that relates to lawful or official business while using government resources.
The American government, NSA, Joint Staff, and DoJ are hypocrites. There should be no sympathy when – after the engage in unlawful combat operations in Iraq – that their ilk suffer harm, or they have subsequent problems. Their problem. They decided to commit and support war crimes; there should be no sympathy for them when they suffer the natural consequences of waging and supporting an illegal war.
Question 13
13. Some are concerned that NSA’s use of this authority erodes the Department
of Justice’s authority to conduct wiretaps under FISA. Do you agree with
this concern?
Commentary
DoJ is simply apologizing for non-sense. DoJ’s assertion is laughable. They have disdain for the law. FISA to them is merely an inconvenience.
Their conduct shows they have no regard for the law. They do not view FISA as being essential – if they did they’d follow it. They have done the oppotei.
It is a false statement of assurance by DoJ to Congress to say that FISA is an “invaluable” tool – rather, the opposite is true: DoJ views it as a meaningless requirement to be ignored. They look at the FISA not as a guide to regulate ministerial duties, but as a means to engage in unlawful domestic conduct.
The White House and NSA activites are at odds with the law. The current activites are narrowly defined. All DoJ statements should be interpreted in the opposite way: They are not to be believed.
The current NSA activites are not narrowly used for foreign-related matters. Rather the other data mining programs explicitly target AMreicans. The conduct has no reasonable connection with any bonafide power or authority; nor is the conduct consistent with statute; nor is the conduct consistent with any expressly delegated power to the Federal Government. They do not have the power or authority to do what they are doing – engaging in warrantless surveillance on Americans – cmpletley disconnected from any reasonable relationship with any foreign agent; and this unlawful activity is outside the scope of what FISA permits.
The DoJ laughably would have us believe the unlafwyul NSA activity is narrowly focused on combat-support. We know this to be false because of the repeated unlawful montoring of attorney-client privledge; and civilians located in the United States.
The surveilalne is not consistent with the AUMF: and the illegal conduct occurred prior to Sept 2001.
ALERT ALERT ALERT
DoJ curiously includes the phrase “in other contexts,” as sure sign that there is an attempt to slip this definition under the radar, and have the House Judiciary committee endorse the responses, without a followup. Inaction on this term will generate an illusory DoJ assertion f, “You dodnn’t ask about this – so it’s too late.” This issue needs to be followed up.
DoJ incorrectly distringueshes the AUMF-related surveillance from FISA-related; the two are not different. Rather, all surveillance – even those outside the current discussion – must be consistent with FISA. There is no choice.
DoJ incorrectly characterizes FISA. FISA is not a standard that may or may not apply; rather it always applies. It is an illusion to say that FISA is or is not applicable relative to specific targets; rather, the actual NSA activity is targeting non-combat-related targets totally at odds with the DoJ assertions below.
DoJ is also inconsistent in that it below states that FISA may apply to a situation; but later it descirbes that this situation does not warrant FISA court review; nor is it subject to the standards of FISA; nor are the warrant exceptions applicable. DoJ is inconsitent I nthat it fails to consistently apply FISA warrant exceptions.
It is irrelevant whether FISA does or does nto permit the use of evidence during trial; the FISA rules expressly outline the exceptions to eh warrant requirement. The stated objectives – other than those which are illegal and outside the current discussion – are at odds with the current warrant requirements.
The goal is not to protect sources and methods; the purpose of FISA is to balance the needs for lawful surveillance against the 4th Amendment. DoJ has provided no discussion related to the warrant excpeiont;s and cannot explain why the NSA is or is not complying with the full FISSA standards.
DoJ’s assetions that FISA is important, valuable, or interesting are meaningless claptrap. Whether FISA does or does not have procedures to use evidence is irrelevant – FISA has speicicf exceptions to the warrant requirement – but the DoJ, White House, and NSA admit that they are not ensuring that these exceptions are within what they are doing. Rather, despite clear exceptions to warrants – which permit warrantless surveillance – the White House has engaged in surveillance that is not an exception, but unlawfully self-delgates itself the power to create new exceptions.
Tehse exceptions have nothing to do with Sept 2001 or the AUMF. The exceptions were created prior to 2001 and were used to unlawfylly use military techonloghy and force againt American cviilans who are and were outside the scope of the AUMF or the events in Sept 2001.
DoJ cannot explain why they rely heavily on excuses which have nothing to do with the actual events prior to 2001; or the actual illegal programs which started before the AUMF was discussed.
DoJ knows tha tall illegal information and unlawful NSA programs conssitute war crimes; and that the information they glean is not simply a matter ofevidence they can use, but something the public can use as evidence of what NSA, the Joitn Staff, DoJ, and the White House have commonely agreed to prior to Sept 2001 and the AUMF. This is called aconspiracy to unlawfully assert and use non-delegated powers against the American People. This is a war crime.
It is an illusion that the AUMF provided a “new exception” or a “new means” to use the NSA resources. Rather, these “new means” were already in place, well used, and well known prior to the AUMF.
DoJ knows the procedures are ignored; the existing standards do not permit the use of this technology against American vciivlians; and it is absurd to say that the DoJ can credibly assert that “protection of sources and methods” has a higher premium than the protection of the Consttution. Yet, this is hwere we find ourselves: DoJ has a higher loyality to criminal conduct that they do in ensuring the rules and laws are enforced.
DoJ is the enemy of the Consttution. They defy their oaths. They support illegal conduct; they use the NSA as if if were a hidden informant; and they unlafwlyuly use the NSA as if if were part of the informant program which theyunlaflly self-delegate the authority to ignore and not regulate. This is a sign of a government out of control and moving at odds with the laws of the land.
It is an ilusoin to suggest the AUMF create a “new” force or method; this is outside FISA, and it is not consistent with the real exceptions unlawfully created-relied upon prior to the AUMF. The NSA cannot explalin why – despit ethe pre Sept 2001 capabilityes which were well known to exist – why they were unable to detect the events related to September; or how this capability was used or not used. There was insufficient time to create this capability.
The NSA actdivtiy is not isolated to AUMF or the SEpte 2001 activites; rather it targets other things urnleated to actual conduct, statutes, or events. It is fiction to assert that the AUMF created a new, unlawful power; or that it created any authority to do anything new. Rather, the illusory pwer was already asserted outside the AUMF,
DoJ Response
FISA remains an essential and invaluable tool for foreign intelligence collection,
both in the armed conflict with al Qaeda and in other contexts. In contrast to surveillance
conducted pursuant to the Force Resolution, FISA is not limited to the conflict against al
Qaeda and affiliated terrorist organizations. In addition, FISA has procedures that
facilitate the use of evidence in criminal prosecutions while, at the same time, protecting
intelligence sources and methods. In this instance, the Force Resolution provides the
President with another means for conducting intelligence surveillance against al Qaeda
and related terrorist organizations.
Commentary on Question 14
It is well recognized that the NSA was conducting surveillance prior to 9-11. whether the FISA was or was not updated after 9-11 is irrelevant.
FISA has been given lip service in its adherence and enforcement. The changes to the FISA are unlraeted to the lawful requirements; the changes to FISA were not related to Sept 2001, but an assertion of power to get “permission” to do what they had already done in violation of the law.
Each time they violte the law, they want FISA updated to incoproate that change. That is absurd. First, in early 2001 NSA conduct illegal surveillance, then FISA was changed; however, in order to avoid tipping off Congress to what was actually going on, they narrowed the scope of the FISA changes, and did not incorpate all the exceptions they needed to do what they were doing prior to Sept 2001.
FISA is designed to remain the solve structure to regulate NSA activity> The problem is that the Congress and Execuive both now that there are other thigns going on outside FISA, and these are not in the narrow definition” of thwat is bein discussion.
Yes, publicly FISA is intended to be applicable; I npractice the unlawful conduct and FISA are essentially in different universes: What he NSA is doing is at odds with FISA; and FISA changes are not consistent with what the NSA is or is not doing. FISA changes are simply window dressing and bandaids to retroactively “legalize” conduct that has already violated the law. Congress does not have the power to ratify illegal conduct; and cannot explalin why there is a disconnect between the full FISA warrant exceptions and the actual unlawful NSA activity outside the existing narrow definition of illegal White Hosue condudct.
14. Does the fact that Congress amended FISA in response to the terrorists
attacks on September 11, 2001, “[bolster] the notion that FISA is intended to
remain fully applicable,” as asserted by the January 5, 2006 CRS
Memorandum?20
Commentary on DoJ response below:
Note that the DoJ didn’t say that the amendments were consistent with conduct; rather, they said the changes were simply consstent with their worthless statements. That is meaningless. The real focus should be on what the NSA is doing, despite the inlawful self-delegation of non-delgated, and illegal power to ignore FISA.
DoJ also absurdily uses a “narrow term” to “narrowly assert” that the conduct is or is not lega. This is meaingless. What does the DoJ propose calling the surveillance prior to Sept 2001: There wree no terrorists – if there were, NSA would have “known” about them; but the White Hosue says, “Duh, we were clueless.”
What does the DoJ propose calling the pre-Sept 2001 Surveilalnce:
“This program” is meaingless. There are other illegal NSA programs. The montoring covers Americans unlreatd to any bonafide risk; and the exceptions do not exist in FISA. This monitoring is illegal.
The basis for the monitoring isn’t “probable cause” or “reasonable grounds” – rather it is an unreasonable belief based on non-sense. It remains to be understood how many NSA targets were selected simply because businesses wanted to retaliate; or the mere fact that law enforcmenet –as was done in Guantanamo – had no evidence, so they used unlawful NSA montoring to go on fishing expedtitions. When that didn’t work, they then sent in direct house searches, and hired contractors to pose as “bonafide” people who were actually there simply to “find out” what the NSA didn’t know.
In short, the NSA, White House, DoJ, and JTTF – as they were doing prior to Sept 2001 – were monoitoring things on the basis of no reasonable standard. Rather, in 2006 all the NSA is doing is more of the same: Whatever they want regardless FISA.
DoJ asserts that one member is or is not a foreign agent. This standard is ignored.
Note also that the NSA montirg – using DoJ’s woreds includes “a variety of purposes that have nothing to do with terrorism” – this means anybody.
The problem is that this sweeping exception is outside FISA; rather than do what should have been done in Guantanamo – admit that they are cluless and have no evidence – the NSA and White Hosue self-asserted the power to use their stupidity and ignorance as the “basis” to broaden the NSA activity outside what was lawful. Then law enforcement, commercial business, and allies of the White Hosue were orchestrated and organized on the basis of information that was not lawfully obtained. It remains to be understood how this information is used to unlawfully intimidate a civilian population.
The changes to FISA after Sept 2001 are not consistent with the actual illegal conduct NSA had already engaged in prior to Sept 2001.
Note DoJ says, “Preventing a potential attack” – this ia called a pre-emtpive use of military force against the American civilians. It remains to be explained – why, despite the pre Sept 2001 mointoiring – NSA failed in Sept 2001 to do just that: Prevent a potential attack. This is an unworkable, and unlawful standard, especially when the actual target of that montoring is CONUS – the same area where the US government planned, organized, prepared and trained for the events in Sept 2001.
The issue wasn’t that FISA was or was not a “problem” – the issue was that Sept 2001 was a good time to change the laws that had already been violated. Congress wasn’t thinking. There is no merit to any argument that the FISA process was defective – this process was already ignored prior to Sept 2001.
It is absurd to ssuggest that “effective functioning” was undermined prior to Sept 2001 – DoJ personnel had enogh time to draft unlawful language related to events that had not occurred, but were well known to be in the planning stages.
The real aim of the changes to FISA has yet to be understood: If they wre already violating the law, why go to the trouble ot changing the law they subsueqnetly were going to still ignore?
It is an illusion to assert that FISA “got in the way” or was a “contributor” to the problems; rather despite ignoring FISA, the NSA still montinored; and still was well awrae of what was going on prior to Sept 2001, but there was no solution.
IT is a russe to suggest that the FISA “got in the way” of anyting; as is the excuses that the “wall” between the FBI and CIA “got in the way” – the ifnromation was already consolidateted at the DSP for the NSC to review.
Note DoJ says the problems were “across the board” – this is a fatal admission: Like Katrina and Iraq, and the pre Sept 2001 monitriing, the US government failed. That is absurd: It was delicately shut down, and FISA has been the “Excuse” to say, “we need to change FISA so we can avoid this.” Again, that FISA did or did not exist prior to Sept 2001 was irrelevant to what the NSA was already doing in early 2001: Unawfully montiring American Civilans; the issue is despite the information the NSA knew – as was the case with the Iraq wMD – they chose to assent to illegal conduct, violations of the law, and unlawful use of military force against civilans.
DoJ response
The amendments to FISA after the September 11th attacks are fully consistent
with the Department’s explanation of the legal authorities supporting the Terrorist
Surveillance Program. It is important to emphasize that the Terrorist Surveillance
Program is limited to communications where one party is outside the United States and
there is probable cause (“reasonable grounds”) to believe that at least one party is a
member of al Qaeda or an affiliated terrorist organization—the organizations that the
President determined were responsible for the September 11th attacks. But foreign
intelligence surveillance is also necessary to detect and prevent potential attacks from
other, unrelated terrorist groups, as well as for a variety of purposes that have nothing to
do with terrorism. These amendments to FISA enacted after September 11th were crucial
to correct certain systemic problems in the FISA process that impaired its effective
functioning across the board, not simply with respect to the armed conflict against al
Qaeda.
Of particular importance were modifications that removed the “wall” between
intelligence officers and criminal law enforcement officers. See In re Sealed Case, 310
20 37 CRS Memo.
13
F.3d 717, 725-30 (Foreign. Int. Surv. Ct. Rev. 2002).
Commenary on DoJ response below
DoJ reles on more nonsense about the events in 2001. The wall is an illusory excise. The CIA and FBI information is combeind at the DSP.
It is absurd to suggest that the “wall” got in the way. NSC well knew – and was documtend in the PDBs – what the issues were.
It is irrelevant what the Los Alamos Lab investigation found; NSA was already illegal monitoring civilans in early 2001.
Whether coordination is or is not limited within DoJ is meaningless: The US Govvernment does not have the power to self-delegate powers that violate the constrituotin;
Rather, the “DoJ fight” is aginst the AConsttitution prior to Sept 2001. That the “wall” existieed – or “FISA existed” was no deterrent to what eh NSA was doing prior to Sept 2001: Unlawfyully monitrong Americans. The issue is: What happened to this information, where is it located, and what new information is being used to subvert the lawful enforcement of the Constittuion against government officials who have no lawulf authority to do what they are doing – vilate the law.
DoJ fails to specificy why the “wall” at this point is of any relevance to a discussion about FISA or illegal NSA activity prior to Sept 2001.
What Congress did or did not do after Sept 2001 in no way addresses what DoJ avoids: The NSA acitivty prior to Sept 2001 that continues, and is still outside the changes in FISA. DoJ asserts without any basis to believe that Congress did or didn’t do something to “approve” “subseqnet” conduct; the issue is that this Conduct was already occurring rior to Sept 2001; and NSA has yet to account for why tehse pre Sept 2001 intercepts were not used to show who was really behind the explosions.
DoJ fails to justify any confidence that the Congressional AUMF pemitted violations of FISA; or created new exceptios to the warrant requirement. Rather, DoJ cannto explalin why the pre Sept 2001 illegal activity did not trigger additional changes to FISA I nsubsequent FISA updates.
DoJ fails to make the case that th surveillance is only against a narrow target; they continue to narrowly define “this program” – leaving open the quesotin who they are targeting in the “uknown programs”. We can make the adverse judgement that the DoJ knows full well that the NSA conduct in the “other programs” also violate FISA; orthewise, these changes would have been incorapated and the NSA activity would be lumped into the “known activity.”
DoJ fails to make the casue that congress “approved” new exceptions to the arrant requirement; or that the Congressional changes ratified retroactively what NSA was vilating in early 2001.
In no way has Congress authorized, approved, passed, or other enated “new legislation” that would meet the “new statute” or “other statute” requirement in FISA to create a new exception. Rather – if this were true that the AUMF created new excpeitons – there would have been no reason for DoJ to have moved in 2004 to create new FISA updates. Given DoJ’s conduct – that they moved in 2004 to change FISA – it is without merit that the DoJ asserts that the 2001 changes fully addressed all the exceptions.
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[Back to top]
Important diagrams: Showing the problems with the DoJ responses over the NSA issues
DoJ responses to House Judiciary Committee prove the Sept 2001 events were unrelated to what the NSA was doing: They were already violating FISA, and the phone companies knew this.
Summary
If you map out the DoJ responses, you'll see some major inconsistencies.
The AUMF-story doesn't add up. GCHQ has copies of the concerns the phone companies had about the NSA activity; these concerned were raised before Sept 2001.
Changes to FISA were not related to Sept 2001, but to the phone companies concerns with liability. The 2004 FISA changes prove Gonzalez and DoJ knew, contrary to public statements to the Senate Judiciary, that the 2001-AUMF was insufficient legal cover for the phone companies: The Phone companies knew in before Sept 2001 the NSA activities were outside the lawful exceptions to the warrant requirement.
Master Plan for Pre Sept 2001 readiness exercises and procurement support
NSA -------------------------------06
...
AUMF === 01 ===============
...
FISA changes ====== 02 === 04 ====
...
------------- time -------------------
Points
1. Illegal NSA monitoring occured prior to Sept 2001
2. AUMF is a red herring
3. FISA changes required because DoJ knew AUMF failed to justify all the NSA activities which were outside the "FISA warrant exceptions"
4. NSA illegal activity occurred prior to and after Sept 2001
5. Sept 2001 date/events are a red herring
6. Phone companies knew pre Sept 2001 monitoring was illegal
7. GCHQ has intercepts of phone company communications with NSA and DOJ in legal concerns: Intercepts did not meet the approved warrant exceptions
8. DoJ knew [pre-Sept 2001] there would soon be a basis to get the needed changes to FISA/Congress would ok the changes; and told the phone companies not to worry
9. Problem: The AUMF did not cover all the illegal NSA programs; and new FISA changes were required in 2004 to appease the phone companies
10. 2004, NYT knew about the issues; 2005 NYT published the information; now we know the President and Joint Staff ignored the Constitution and have violated their oaths of office.
NSA Diagram 1 of 6
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Check the Schedule: FISA changes, NSA pre Sept monitoring; post 2006 changes; actual NSA conduct. The changes are not consistent; the DoJ stories do not match; and the ruse has been to focuse attention on the NSA and FISA, and distract attention from the phone companies who have failed to ensure there were warrants behind what the DoJ was ording them to do. It remains to be understood how many NSL’s were issued ordering the phone companies to engage in conduct that violated the updated changes to FISA; and how many NSL-like warrants were provided before Sept 2001 to support the unlawful NSA monitoring prior to Sept 2001.
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2. NSA Collected Data at odds with minimization requirements
Title: Actual data collected far exceeds what minimization standards permit
Vertical x-axis: Standard on acceptable
Data collected
.....
I Actual data -------------
I collected ^
I /
I /
I /
I [Arrow/ = difference]
I diagonal /
I line /
I /
I /
I Minim- /
I -ization --------------
I standard
......
NSA Diagram 2 of 6
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Check the authorized levels vs the actual minimation procedures. You find that the collected information is at odds with the minimization requirements, not only before SAept 2001; but also subsequent to the 2001 FISA changes, and continuing well into 2006.
3. Dissuade telephone companies from bargaining with Congress related to evidence over impeachable offenses
Congress needs to subpoena the NSA intercepts of those phone cmpanies discussing their concerns with the conduct at odds with the Chruch Commission. These intercepts were what prompted DoJ and the NSA to go to Congress; They knew they had a problem. Yes, the priviledged conversations between the Phone Company General Counsel and the Board of Directors is well known, and has been transcribed. This is in part what drove Gonzalez to act in 2004. You can look for the communications between the NSA, NSC, and the DoJ General Counsel over the issues the phone companies were raising in 2003 and 2004.
Had the conversations not occurred, Gonzalez would not have pushed for more changes in 2004. IN other words, statements in 2006 that the AUMF was sufficient to trump FISA is at odds with the evidence of [a] phone company concerns to the contray; [b] discussionsn between NSA and the phone companies on thes issues; and [c] Gonzaelz ddiscussion in 2004 over matters he would have us believe in 2006 were fully addressed and approved by the AUMF.
==========================================
Title: Illegal NSA monitoring before Sept 2001
Legend: 01 = 2001 00 = 2000
Illegal
NSA Monitor 00 ----01 --------------------- 06
...
...
Phone Co ===01 === 02 ====== 03 ==== 05
concerns
...
...
DoJ FISA Changes === 01/02 ==== 03 ==== 04 === 06
------------- time axis -------------------
Points:
- A. The warrant exceptions keep widing to incorporate illegal conduct: THe President knows he's violating the law
- B. Each time NSA violations detected and/or phone companies concerned about liablity, Congress changes FISA
- C. Changes to FISA after 2004 prove DoJ knew the AUMF was insuffucicient
- D. AUMF is not a legal foundation for 2006 activity
- E. GCHQ intercepts confirm: Phone companies contacted DoJ, concerned NSA conduct was outside FISA exceptions
NSA Diagram 3 of 6
==========================================
Clearly, given the reliance on AUMF as the basis for the DoJ defense – combined with the fatal admission by Gonzalez at the 06 Feb 2006 Judiciary committee – we know the DoJ did not rely on the AUMF in 2004; nor did the Phone companies rely on the AUMF-argument as a legal foundation for what they well discussed was illegal and failed to remove themselves from as they should have done, given they were well advised by a competent attorney, well versed in the Church proceedings, and FISA.
==========================================
Title: GCHQ has intercepted the phone company memoranda to DoJ and NSA related to their concerns over the warrants which were not lawful exceptions
NSA -------------------------------
...
...
AUMF === 01 ===========================
...
...
FISA changes ====== 02 === 04 ====
...
...
Phone company memoranda * * * * * * *
------------- time axis -------------------
Points
1. NSA illegal monitoring started before Sept 2001
2. Memoranda: There is intercepted information showing the phone companies were concerned in early 2001 that the conduct was not legal, prompting changes to FISA after Sept 2001
3. FISA changes in FY02/04 [occurring after FY02 AUMF] failed to convine phone companies the President's warrant excpetions were lawful; phone companies knew:
- [a] Congress did not approve of the warrant exceptions; and
- [b] Congress was not lawfully involved in rele making, ARticle 1 Section 8
NSA Diagram 4 of 6
==========================================
Consider the FISA-telephone company-warrant nexus: Again, the monitoring pre 2001 is at odds with what the phone companies knew to be the standard; and despite changes to FISA, it appears the subsequent unwarranted surveillance was crafted not to comply with the law, but to create confusion for the telephone companies to point to and say, “Hay we really thought. . .” when no reasonable phone company could conclude the conduct was consistent with the statute. The DoJ statements are not about doing the right thing; they are about providing some assistance to the phone companies, with the hopes that the phone companies do not turn over evidence to Congress on what was really going on: Well known violations of FISA in pre Sept 2001, and not fully provided to the review of the explosions.
Rather, it remains to be seen how many NSA interceptions – despite the changes in 2001 and 2004 – still violate the law in 2006 as they did in 2001.
DoJ fails to make the case that the changes to FISA in 2001 permitted NSA or the White House to do what it is doing in the “other program”; nor does DoJ provide any assurance that the NSA activity in 2006 is narrowly confined to one set of targets, and does not include illegal targets in other programs.
As with the definition of the activity, DoJ narrowly defines the statue and what is permitted: But the actual conduct – in early 2001 and 2006 -- is at odds with the changes to FISA. NSA-White House conduct and FISA-changes are not in harmony.
DoJ response contineus
This “wall” was identified as crippling the Government’s use of foreign intelligence information well before the September 11th attacks and in contexts unrelated to terrorism. See, e.g., Final Report of the Attorney General’s Review Team on the Handling of Las Alamos National Laboratory Investigation 710, 729, 732 (May 2000); GAO, FBI Intelligence Investigations: Coordination Within Justice on Counterintelligence Matters is Limited (GAO-01-780) 3, 31 (July 2001); see also The 9/11 Commission Report 78-81, 424 (2004). Although the existence of the “wall” undermined the fight against al Qaeda, it also impaired the Government’s ability to conduct foreign intelligence surveillance in other critical contexts. Thus, the amendments to FISA made after the September 11th attacks in no way undermine the conclusion that Congress authorized electronic surveillance for the particular conflict against al Qaeda through separate legislation.
Commentary on Question 15
Notice Congress contiues to focuse on post Sept 2001 mointoring. This is a ruse. The full question should address the pre Sept 2001 montoring.
It is irrelevant what Congress did or did not do after Sept 2001. The NSA had already conducted the unalwflyu activity.
There was no “autoriization” for anyting – the Presient already directed the NSA to voatle the alw prior to Sept 2001.
There is no legal foundation to engage in surveillance outside FISA. Congress did not grant DoJ or the NSA or the White Hosue th power to conduct warrantless surveillance outside the exceptions; if this sweeping authority was real – then there would have been no reason for Gonzalez in 2004 to request additional changes to FISA.
There was no authorization of any illegal activity. The narrow defition of the illegal conduct fails tmake the case that the conduct does or does not require Judical Review.
Rather, the full ragne of the other NSA activity can be adversely jduged to fall well outside what the FISA permits; and the NSA, telephone companies know this very well. The only “ratoinalze” to make changes to FISA after Sept 2001 appears more related to providing the phone companies with some assurances, not with actually ensuring the NSA conduct met a lawful objective. It remains to be seen how many people who had no reasonable connection to anything were subsequently targeted with telephone company assistance that the phone companies should have known failed to meet the requirements.
The goal of DoJ was not to break down any wall –that wall did not exist. Rather, ti remains to be understood what legal discussions within the phone companies occurred that were putting pressure on the DoJ to get some legal protection in the event of disclosure. However, the unlawful NSA activity had already occurred prior to 2001, leaving the phone companies vulnerable. It remains to be seen what has been done to delayknowledge of these events in order to exceed the statute of limitations.
It remains to be understood how many FISA court ruling would have effectively been trumped by self-delegating authority to violate the law; or creating new exceptions on the back of the AUMF which still fall outside the FISA.
==========================================
NSA -------------------------------
...
...
AUMF === 01 ===============
...
...
FISA changes ====== 02 === 04 ====
...
...
NSA Diagram 5 of 6
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Clearly, if you compare the AUMF timeline; with the FISA change timeline, you’ll see that the actual NSA monitoring was unrelated to these changes. Moreover, the argument that the FISA and AUMF did or did not say something in 2001 is meaningless given in 2004 Gonzaelz asked for additional changes. Had the AUMF specifically ‘approved” what is known in 2006, then there would have been no changes in 2004. Thus, there is no connection between 2006 and the AUMF or Sept 2001 events; nor is there any link between the pre Sept 2001 events and the changes to FISA, or the AUMF. Rather, NSA was simply doing what it wanted – as was done in Guantnaamo and Abu Ghraib – the issue is that the Whit eHouse has been caught, but wants to avoid accoutnabilty for its hypocrisy, war crimes, and impeachable offenses.
==========================================
NSA -------------------------------
AUMF === 01 ===============
FISA changes ====== 02 === 04 ====
Phone company memoranda * * * * * * *
NSA Diagram 6 of 6
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15. What is the rationale for authorizing a program to conduct surveillance in a
manner that does not require prior judicial review by the FISA Court?
Commenatry on DoJ response
DoJ response
After September 11th, speed and agility were especially crucial in fulfilling the
President’s constitutional obligation of protecting the Nation from further attacks. The
Terrorist Surveillance Program targets communications only where one party is outside
the United States and there is probable cause to believe that at least one party to the
communication is a member or agent of al Qaeda or an affiliated terrorist organization.
FISA itself uses a “probable cause” standard. Among the advantages offered by the
Terrorist Surveillance Program compared to FISA is who makes the probable cause
determination and how many layers of review must occur before surveillance begins.
Under the Terrorist Surveillance Program, professional intelligence officers, who are
experts on al Qaeda and its tactics (including its use of communication systems), with
appropriate and rigorous oversight, make the decisions about which international
communications should be intercepted. Relying on the best available intelligence, these
officers determine before intercepting any communications whether there is probable
cause to believe that one of the parties to the communication is a member or agent of al
Qaeda or an affiliated terrorist organization.
By contrast, pursuing “prior judicial review by the FISA court” requires
significantly more time. In order to obtain judicial review by the FISA court before
conducting surveillance, the Government must assemble a voluminous application, obtain
the approval of the Attorney General himself and senior administration national security
officials, submit the materials to the court, and await its decision. Also, because FISA
requires the Attorney General to “reasonably determine[]” that “the factual basis for
issuance of” a FISA order exists at the time he approves an emergency authorization, see
50 U.S.C. § 1805(f)(2), as a practical matter, it is necessary for NSA intelligence officers,
NSA lawyers, Justice Department lawyers, and the Attorney General to review a matter
before even emergency surveillance would begin. Great care must be exercised in
reviewing requests for emergency surveillance because of the risks involved. Among
other things, if the Attorney General authorizes emergency surveillance and the FISA
court later declines to permit surveillance, there is a risk that the court would disclose the
surveillance to U.S. persons whose communications were intercepted, see 50 U.S.C.
14
§ 1806(j), potentially compromising ongoing intelligence efforts. The Terrorist
Surveillance Program allows experienced intelligence officials to begin surveillance
quickly while still safeguarding the civil liberties of Americans.
Commentary on Question
Notice the Conress is shifting attention from what the Phone companies were working with at the time: The FISA statute, and the exceptions the warrant requirement.
What DoJ and the House Judiciary Committee are hoping to do is shift attention from the phone company memoranda and create some sort of legal argument, when the evidence form the phone companies shows the opposite: they were concerned; they viewed the FISA changes as not consistent with what they were being asked to do.
The AUMF fails to explain two things:
What Congress did or didn’t do with the AUMF is meaningless – Gonzalez has fatally admitted that:
Question
16. Does the legislative history of FISA “reflect an intention that the phrase
‘authorized by statute’ was a reference to chapter 119 of Title 18 of the U.S.
Code (title III) and to FISA itself, rather than having a broader meaning, in
which case a clear indication of Congress’s intent to amend or repeal it
might be necessary before a court would interpret a later statute as
superceding it”?21 Do you agree with this assertion? Please explain.
Commentary on DoJ response below
This issue is a red herring, and fails to address the pre-AUMF illegal activity; or why Gonzalez requested changes to FISA that – if the AUMF was the requisite statute – shlud ot have been needed. The legislative history of FISA is not relevant to what was going on prior to Sept 2001: Illegal activity.
42 USC 1983 does not afford immunity to government officials who vialte the laws of war; nor is there any defense when the conduct violates the laws and Consttuton. DoJ’s only goal in this is to confuse law enforcement and the public over what is or is not an issue.
DoJ’s conclusions are absurd. This would ask that we ignore the 2004 Amendments to FISA: and ignore the concern DoJ and Gonzalez had.
Rather, if DoJ’s assertion is true – that the “authorized by statute” clause applies to the AUMF and permits this to change FISA – there would have been on reason for Gonazelz to have made changes to FISA, three years after the AUMF.
Rather, Gonzalez has fatally affirmed and admitted conduct and concerns which are at odds with the DoJ non-sense below. Rather, DoJ cannot explalin why – if the AUMF was sufficient to meet this other “authorized by statute” exception – why Gonazlez in 2004 did exactly this: Ignore this “wellk known exception” and push for a change. Gonzalez is in a trap:
Howveer, “B” makes no sense: Gonzalez is not one to make Congress do anything that is not required. The White House and DoJ already ignore the law; there was no reason to change the law. There had to have been non-DoJ actors with sufficient leverage to warrant a change to FISA despite the exuse of there is nothing to worry about. We judge this leverage was linked with campaign funds, and a reasonable belief that the NSA contractors were going to go to Congress with the full evidence. It remains to be understood in 2004 what deal there was between the NSA contractors to keep them quiet over this activity; and how this played in the 2005 discussions between the NSA employees, the media, and their concerns over the legal implications of the insufficient legal foundation for the warrantless surveillance.
DoJ response
The legislative history reveals no such intention to limit the scope of section
109(a) to one chapter in one part of the United States Code, even if such a reference
buried in a committee report could be probative in light of the plain meaning of
“authorized by statute.” The legislative history focusing on chapter 119 of title 18
discussed in the CRS report you cite is directed at section 109(b), which provides an
affirmative defense to law enforcement and investigative officers who conduct electronic
surveillance “pursuant to a search warrant or court order” of a court of competent
jurisdiction. That legislative history has nothing to do with whether the electronic
surveillance is otherwise authorized by statute. As the legislative history makes clear,
there were certain forms of electronic surveillance that potentially were prohibited by the
new FISA statute that would be permitted if a court issued a warrant or order.
In any event, the assertion that in enacting FISA, Congress was attempting to
limit itself—to require subsequent Congresses to jump through the formal hoop of
explicitly “amending or repealing” FISA before a statute could qualify under section
109(a)—is unsustainable.
Commentary on Question 17
Notice this question does several things:
Question 17
17. Have past United States Presidents employed signals intelligence of the kind
authorized by President Bush after 9/11 to protect the nation during
wartime? Please explain.
Commentary on DOJ Response to question 17
Notice the DoJ response is focused on the “big scary threat” – however, this does nothing to address the pre-Sept 2001 montring when the threate did not exist.
Rather, DoJ would have us believe that the messages are “enemy” messages; if this were true, then why did the Phone companies push for changes in 2004 after the AUMF should have granted them the exception?
It does not appear the phone companies bought the story; rather, they knew that the basis for the intercepts was not within the exceptions of FISA; and that the intercepts were no credibly linked with anything related to the enemy. This was known prior to Sept 2001.
That the US may or may not be at war is irrelevant: The law explicitly states what the exceptions were; these exceptions were not fully enacted in the wake of the AUMF, necessitating multiple changes to the FISA.
Wheter the uS is or is not at war has no rleateiship to whether the warrant requirements and the exceptions were known to the phone companies and ignored.
It is of no relevance to what extent other Presidents may or may not have engagedin warrantless surveillance. The issue is that the phone companies and DoJ knew that the AUMF was no sufficient; and that the existing warrant excetion language within the FISA did not cover the full range of NSA actigites, which remain outside this very narrow definition.
There is no merit to any assertin that the targeting is or is not consistent with the Constitutoin; if this was true, how do we explain the “big concern” inside DoJ that madated changes to FISA? If the AUMF was a credible blanket endorsement of whatever the DOJ asserts was “authorized by statute” – then there would have been no reason to make changes. Rather, the changes occurred.
Thus, we can no onger link the AUMF with any subsequent changes; and any effort in 2006 to mention AUMF as the legal foundation for the 2006 illegal conduct is without merit; we need only go back to 2004 to the FISA changes, and ask which phone companies met with which DoJ General Counsels and how was the memoranda created and subsequently stored inside GCHQ. This is outside the NSA control, and it is not something the DoJ can dispute occurred.
How else do the buffoons in the DoJ Genral Counsel’s office justify the “big concern” with the FISA eceptions that “should have” been addressed with the AUMF? Hay, don’t worry –
NOBODY WILL EVER THINK OF ASKING THE GCHQ TO PROVIDE COPIES OF THE INTERCEPTED PHONE COMPANY ATTORNEY-CLIENT MEMOS DISCUSSING THE ILLEGAL ACTITY THAT WAS NOT COVERED BY STATUTE; AND THE INTERCEPTED TRAFFIC BETWEEN THE PHONE COMPANY GENERAL COUNSELS AND THE DOJ STAFF ATTORNEYS WHO MAY HAVE THREATED TO WITHHOLD CAMPAIGN CONTRIBUTIONS IN 2003.
DON’T WORRY ABOUT THAT NOBODOY WLL EVER THINK TO ASK THE JOINT STAFF WHAT THEY DID WHEN THE REALIZED AFTER THE ILLEGAL IRAQ WAR PLANNING STARTED IN 2001 THAT THE WORLD KNEW ABOUT THE DOWNING STREET MEMO AND WAS DISCUSSING WAR CRIMES; AND THEIR INVOLVEMENT WITH VIOLATING THE CONSTITUTION WITH THE ILELGAL NSA INTERCEPTS OF AMERICAN CITIZEN COMMUNICATIONS. There is a DoD planning cell related to distracting attention away from the DoD-phone company discussions between 2001 and 2006 on the illegal NSA activities.
NBODOY WILL EVER THINK OF COMPARING THE DOJ NONSENE BELOW WITH THE BOLTON STATEMENTS ON THE UN INTERCEPTS PRIOR TO THE ILLEGAL IVNASION OF IRAQ. MS GUNN DOESN’T EXIST. FRANK KOZA NEVER WORKED WITH THE NSA. DO NOT ASK QUESTIONS ABOUT GUNN AND WHAT SHE KNEW ABOUT THE NSA. Look for Ms Gunn.
DoJ’s statements below are not consistent with Bolton’s fatal admission of what happens: American citizens are targeted; and NSA engages in illegal surveillance not within the exceptions of the exceptions of FISA. The US likes to whine that the Russians may or maynot have done something withinformation in Iraq; the US does the same all the time when it comes to using information against others. The US is hypocritical.
NOBODY WILL THINK OF THAT. THE JOINT STAFF DOES NOT NEED TO WORRY. NOBODY HAS GIVEN ANY INFORMATION TO THE US ATTORNEY. YOU NEED NOT WORRY. LIBBY NEED NOT WORRY. THE US ATTORNEY DOES NOT HAVE ANY IDEA ABOUT THATI MESSAGE TRAFFIC. GCHQ INTERCEPTS ARE OUTSIDE THE SCOPE OF POSSIBILITY. DoJ is full of idiots. Fitzgerald has the information which Libby’s attorney’s can’t figure out. The Joint Staff has been fed a load of non-sense and cannot credibly believe that what they are doing is lawful.
The Purpose of the DoJ responses isn’t to satisfy congress, rather it’s to confuse DoD employees at the NSA to make them think that things are “well under control.” Get real. These guys are in real trouble. Even people who run idiot blogs can figure this out. – even people who are known to have the worst blogs full of non-sense can figure this out:
DoJ response
Presidents have intercepted enemy messages to protect the Nation during a time
of war since the earliest days of the Republic. This rich history is detailed at length in the
Justice Department’s paper of January 19, 2006. See Legal Authorities Supporting the
Activities of the National Security Agency Described by the President at 14-18. In the
electronic age, Presidents Wilson authorized the interception of all cable, telegraph, and
telephone communications into and out of the United States during World War I. See
Exec. Order No. 2604 (Apr. 28, 1917). During World War II, President Roosevelt
similarly ordered the interception of all ”telecommunications traffic” into and out of the
United States. See Memorandum for the Secretaries of War, Navy, State, and Treasury,
the Postmaster General, and the Federal Communications Commission from Franklin D.
Roosevelt (Dec. 8, 1941). The Terrorist Surveillance Program, by contrast, is far more
targeted and directly fulfills the President’s core constitutional obligation to protect the
21 40 CRS Memo.
15
Nation from foreign attack. The Terrorist Surveillance Program targets for interception
only those communications where one party is outside the United States and there is
probable cause to believe that at least one party is a member or agent of al Qaeda or an
affiliated terrorist organization.
Commentary on Question 18
Question 18
18. Does the Administration’s position rely, as asserted by the January 5, 2006
CRS Memorandum, on the assumptions that (1) “the power to conduct
electronic surveillance for intelligence proposes is an essential aspect of
military force in the same way that the capture of enemy combatants on the
battlefield is a necessary incident to the conduct of military operations,” and
(2) the Administration considers “the battlefield’ in the war on terrorism to
extend beyond the area of traditional military operations to include U.S.
territory”? The CRS Memorandum continues that “[b]oth assumptions
have been the subject of debate.”22 Do you agree that it is debatable as to
whether the United States homeland is still a target of al Qaeda?
Commentary on DoJ Response to Question 18
DoJ responsen to question 18
Signals intelligence targeted at the declared enemy of the United States during an
armed conflict is certainly a “fundamental and accepted incident of war.” As described
above, past Presidents have a long history of employing intelligence surveillance against
the enemy. As detailed in the January 19th paper, the laws of war have long recognized
the permissibility and necessity of conducting signals intelligence. In order to attack the
enemy, it is imperative to ascertain the enemy’s location and plans. In this regard, it is
important to note that Congress charged the President not only with using “all necessary
and appropriate force” against the enemy, but to “determine[]” who the enemy is.
Fulfilling those demands requires effective intelligence.
Commenatry on DoJ response below
DoJ response
The United States homeland is certainly still the target of al Qaeda. Indeed, as
recently as December 7, 2005, Ayman al-Zawahiri stated that al Qaeda “is spreading,
growing, and becoming stronger,” and that al Qaeda is “waging a great historic battle in
Iraq, Afghanistan, Palestine, and even in the Crusaders’ own homes.” Ayman al-
Zawahiri, videotape released on Al-Jazeera television network (Dec. 7, 2005). And
earlier this year, Osama bin Laden warned that al Qaeda was preparing another attack on
our homeland. After noting the deadly bombings his organization had committed on
London and Madrid, he said that
The delay in similar operations happening in America has not been
because of failure to break through your security measures. The
operations are under preparation and you will see them in your homes the
minute they are through (with preparations), with God’s permission.
Quoted at Click (Jan. 19, 2006)
(emphasis added). The threat from al Qaeda continues. Our enemies in this armed
conflict have unfortunately made the United States a part of the battlefield. The attacks
by al Qaeda on September 11th occurred in the United States and killed approximately
22 34 CRS Memo.
16
3,000 Americans—the highest single-day death toll from hostile foreign attack in the
Nation’s history. That al Qaeda has brought the battle to the United States cannot be the
subject of reasonable debate.
Commentary on DoJ Response
DoJ fails to provide any evidence that the CRS is or is not wrong. It merely asserts non-sense.
It is clear that the US Joint Staff is linked with the NSA. This means one thing: That the Joint Staff is using the NSA to target Americans, and the Joint Staff considers American citizens legimtate military targets. It remains unclear how many Americans have been unlawfully kidnapped and tortchured.
Congress needs to ask:
DoJ cannot credibly argue that the NSA activity is related to a “bonafide threat” – this monitoring occurred prior to Sept 2001.
See the images they’re using: Unrelated to the phone company discussions; not talking about the Constitutoin; distracting attention way from the violations of the war crimes.
Just doing more fo the “big scary story” stuff: Yet, if this “big scary battle” and the AUMF were “alltaht was needed to justify this illegal behavior – why did Gonzalez go to Congress in 2004 to ask for more changes to FISA? What’s the problem DoJ: Why does your story not add up: Why are you asking us to believe the “big scary story” about “big warfare” – surely if this were “enough of an excuse” there would have been no need for a visit in 2004 to get “more permission”.
DoJ needs to explain:
DoJ’s problem is that it wants us to belive that “foreign wars” mean that “everyone is a target at home>’ That’s absurd. The purpose of having a war is to protect America; not use that war to engage in abuse of power and violation of rights.
Rather than rounding people up – as they did in 1941 – the US simply treates the Continental United States like a large prison: You have no right to privacy; you can be seized and searched without probable cause; and you are subject to endless questioningn simply because someone doesn’t like you or you have been accused of something.
That’s called a concentration camp. Call America what it is: A Gestapo-run Concentration camp.
DoJ fatally admits that the Joint Staff and US Government consider the unlawfyul NSA activity a “traditional” military operation. This means one thing: That because they violate the laws of war, the public need not respect those laws and powers which are violating those rights and laws. Namely: Now that the DoJ has fatally asserted that the US looks at the Continental United States as a legitmate forum for combat operations, American citizens need not follow the laws which DoJ and DoD ignore:
In short, DoD and DoJ’s violations – if truly respected as violations of the laws of war as theyh should be – would then ntrigger a whole host of lawful violations by the Amreican citizens; and in doing so: DoJ would then use these subsequent “lawful violations of the law” as pretext – under the “pre-emptive use of power”-doctrine to target amerins more.
This is the same approach being used in Iraq. In other words, the US look at the situation this way:
In other words, it doesn’t matter whethear you do or do not do anything: The American government looks at all Americans as potential criinals – guilty until proven innocent – and that anything Americans do to assert their rights is the basis to abuse them.
This government has no legitimacy. IT is treating Americans no better than the Iraqis: With disdain, with arrogance, and with contempt for local customs.
We never delegated this power to the American Goernment. We have the right to abolish an abusive government; and we may lawfully create a new Constitution that better protects rights and ensures that power is not abused.
This Federal Goernment works with the phone companies, illegally uses military force domestically, and tells American sto put up with it.
That’s a crock. Americans don’t need to recognize the abused power or authority of the Federal Goernment. Simply reject it: “You do not have the authority to do that.” They are powerless. They can only compel you to act with the treat of – and actual use of – force. That is a terrorist-led stiaution – exactlywaht this nation removed when it lawfully told the Biriths Monarchy to take a hike.
That’s what America is all about now: The leadership has no moral authority; it has no legitimacy; and it defies te hlaw. The only thing that it keeping it in power is the threat of force. Wow: Why do they bother responding to bloggers? Becasuse they know that it doesn’t matter what is or isn’t done in real space – the real problem is when people in their minds know that they no longer need to give any respect or recognize the authority of the US Government.
You’re irrelevant. You cause problems, you’re not a solution. You can’t make Americans believe in your non0sese. All you do is create excuses and distractions. But nothing adds up.
We know the 9-11 planning was going on; and that the NSA activity was monitoring what was part of that pre 9-11 planning.
And we also know that the DoJ non-sense below – is completely at odds with what a reasonable person would conclude:
It doesn’t matter what the President may or may not have done. He has the obligation – if he rlies on tribuinals – to ensure that those tribunals are operated in a manner consistent with the laws of war, and the Federal District Court in re rules of evidence, witnesses, and trial procedure. On all counts, this DoJ knows the stautes related to tribuneqls – they hinge on Article 1 Section 8 powers of Cognress to define; an dthis President has defed those rules in Guantanamo.
All the DoJ response below does it confirmt atht eDoJ would have Americans believe in fictin. The truth is well known:
DOJ Response
CRS is also wrong to suggest that the Terrorist Surveillance Program somehow
“extend[s the conflict] beyond the area of traditional military operations to include U.S.
territory.” A crucial part of any war has been protecting the United States homeland
against attack by the enemy, even where the conventional warfare occurs abroad. In
order to protect the Nation against domestic attack and sabotage by the enemy, Presidents
Wilson and Roosevelt ordered the interception of all electronic communications into and
out of the United States, notwithstanding the fact that—with the exception of the
Japanese attacks on Pearl Harbor and at Dutch Harbor, Alaska—the bombs were dropped
and the guns were fired in those wars in Europe, Asia, and Africa, not the United States.
In short, engaging in intelligence surveillance of the enemy by intercepting
communications into and out of the United States has been a “traditional military
operation” even when the conventional war was being fought overseas. Indeed, the
Supreme Court of the United States has held that the President has far more extensive
powers on United States soil during a time of war. For example, the Court upheld the
President’s detention, trial by military commission, and execution of enemy combatants,
caught attempting to commit acts of sabotage in the United States during World War II.
See Ex parte Quirin, 317 U.S. 1 (1942).
Commentary on Qestion 19
This question realtes to pre-emptive use of power against American civlians, in contravention to the laws of war.
The AUMF is not linked with the NSA illegal acitigy. This activity already occurred perior to 9-11.
The AUMF is simply an excuse to assert power without regard to evidence, laws, or the norms of civilized society. We’ve seen in Guantanamo, Afghansitan, and Iraq that the US has no respect for human rights – they wage equally abusive war against Americans in the Continental United States.
The auestoin distracts attention aaway from the following issues:
Question 19
19. Does the Administration interpret the AUMF’s authorization to be
contingent on the realization of “actual attacks”23 on U.S. soil, or to be an
authorization for the President to act in advance of actual attacks to prevent
their occurrence?
Commentary on DoJ response to Question 19
Notice the lovely DoJ words. They would have us believe that the AUMF is ssomethign Congress links.
If this assertion is true – that The AUMF was something Congress did or didn’t do – then DoJ’s argument collapses:
It is abusrd for DoJ to say that the AUMF was the foundation for the President to exercise his “solemnt” constitutional duties – this is absurd. This President has no regard for the law; holds the Constitutoin with no regartd; and looks at his “obligations” as simply things to ignore depending on the passing weather.
If we were to believe that this ‘solemn obligate” were real, then the Preisdent’s conduct in the wake of PDB 06 Aug 2001 shows us that he does not take this job seriously. Moreover, the 52 FAA warnings cearly show he doesn’t take his oath seriously.
What the AUMF may or may not say has no bearing onwhy the NSA before Sept 2001 engaged in this unlawful activity. The right of the people to be seucre I ntehir homes is in the US CONtsituton; the AUMF does not delegate powers to the Excuive to violate the 4th Amenment; nor may any signing statement trump the explict powers delegatd only to the Congress in Article 1 Section 8: Making rules about the detention and trial of pirates.
What is mockingly abusrd is the US treats Amreicans worse than Americans treated captured passengets aboard British ships. In 1775, the Congress stated that all people captured wold be treated humanely as prisoners. This Federal Government threates Aemricans as if they were enemy combatants, not subject to any protectsion of the law, and forced to assent to barbaric standards of misconduct. We have seen well what the arrogant Aermican military is capable of in Guantanamo and Iraq: War crimes.
The President dos not have the power to violate the alw; nor is it appropriate for the President to violate the Constitutoin. The AUMF does not trump the Constitutoin.
Given the NSA monitoring of the pre Sept 2001 events, and the existence of explosives, and planning meetings to fabcitaed an aerospace vehicle, the only people the Execugive – if he rlies on the AUMF laguge in re the sept 2001 attacks – the President has to focse his energy on those inside the US government that assistanted with this event.
It is common sense for the president to wage war in a manner that is consistent with the laws of war. Common sense states that the President will ensure that 5100.77 is enforced; and common sense would command that Americans are protected from illegal use of force. Hoever, this Exeucive fails to ensure that he laws of war are followed; rather, he openly defies the laws of war, fabricates evidence; and then blames others for his reckless leadership and disasterous results.
The only think this war criminal can do – when faced with credible evidence that he is negilgatent, reckless, and a war criminal – is to smear those who dare say what is self-evident: This Government has no regard for the law; and prior to Sept 2001 was illegally using military power and force but still failed to protect aAmeriad, in violation of Article IV of the US Constitution.
This Federal Government th4en uses that violation of Article IV – a failure to protect our constituioanl system – as the exuse to further undermine the system, ignore the separation of powers, and lilegall assert the non-delegated power to violate more rights.
The only ting this DoJ can do is hire buffoons for the General Cousnels office who will simply make stupid comments at odds with their oath – and make non-sense statements about what is or is not lawful.
Even the most stupid of bloggers can figure out that the DoJ Genearl’s Counsels staff attorneys are weak, willing to compromise their aoth, and cannot be trusted to assert their aoths. The DoJ Staff Attorneys remain a threat to our Constitution. Nixon reminds us that DoJ Staff Attorney comments are not proviledgeds; especially when they show the amreican public and stupid bloggers what we all need to see: That your arguments are absurd; that you defy the law; that you can only rely on non-sense; and that rather than assert your oath, you would rather surf the internet looking for exuses to not do your job.
Do you enjoy woking in a cess pool? Do you hope to continue you nonsense- when you become a Fedaral Disctrict Court Judge?
Do you believe that the House JudicizRy Committeee will not review the internet information related to your computers to see whether you can be trusted to focuse on work?
Why should anyone trust you to do what should be done: Assert your oath, potect this Constituon and stand up for the rule of law? You have no answer because you are conflicted. That is your issue. But do not ever assert any non-delegated power to violate the law or Constituotin and think for a moment we do not see what is going on. You’re a threat to the Americna Constituon. You defy it. You have failed. You have public records. You are now on the “do not hire list”.
We have seen enough. Americans need not wait for another list of drivel from DoJ to take reasonable action as they are lawfully permitted to do in the face of these continued ause and actual unlawful use of miltarypower:
Common sense would dictate that the stupid DoJ staff attorneys would realize that theya re on the worng side of the law; and that they should immediately remove themselves from this unlawful conspiracy against the US Constitution.
Common sense would dictate that the stupid DoJ staff attorneys would realize their continued prattleing does not impress even the most stupid of bloggers.
We need not wait for another DoJ memo to made adverse judgements:
Commen sense would dictate that you find that your unlawful support of a these war crimineals may lawfully subject you to lawful retaliation – espedially when the US Government moves without regard to the laws of war, the courts, or the laws restraining such conduct.
You may not find any assurance that you can remain protected from lawful retaliation by the very Americans you may very well imminently take action against. If that is what you want – feel free to pre-emptively attack Americans simply because they dare to be what you do not know well: How to assert their ghts, how to be free, and how to dare to read the Consttutoin.
You are despicable cratesure I nteh DoJ. You surfe theitnernet looking at non-official sites; and do things unrelated to the DoJ mission; yet, you want us to believe that you are somehow “worthy” of resposec.t Your legal statements are trash. You make a mockery of the American legal system. You make it absurd for any one in the world to believe that Americans are capable of assenting to the rule of law. You are despicable barbarisns, defy your oaths, bring discredit upon yoruselvves, and you move without regard to norms of civility.
You are utter trash. Bring it on: You want to wage pre-emptive war against Amreicans – on top of the illegal military operatoinsn you endorese in Iraq – bring it on. Then Americans can lawfully retalaiate against those who wage this illegal war by lawfully ignoreing the laws of war each of you in the DoJ’s office of General counsel ignore, defy, and advocate others defy. You cannot expect American to sit here and letyou advocate illegal conduct. You are pieces of trash.
DoJ is the one that is advocating illegal use of military force. And they expect the world to assent to that? Why does DoJ threaten the illegal use of military force Again Amreicans; how dare DoJ make any comment that amounts to a defacto threat of imminent use of military force against Americans. That is utterly outrageous, despicable, and a complete breach of your trust as anyonen who walks along the sidewalk to that trash building you call the Hoover Camp.
“Common sense” would dictate that the trash staffers inside DoJ and the White House wake up to the barbaric vilatios of the law that they assent to in this illegal war in Iraq; and the continued defiance of the laws of war and illegal use of NSA technology which defies the laws, COnstituotin, and 4th Amendment.
“Common sense” would dictate that the trash inside DoJ and JTTF stop using these images of “big scary things’ as a means to dissuade Americans from doing what this Federal Government does: Ignore the Constitution; and lawfully retaliate by creating a New Constittoin that lawfully revokes the abused powers you have self-delegated.
“Common sense” would compel each of the trash attorneys inside the White House and DoJ to realize you are on the wrong side of the law; and that you have no hope of successfully defending in any court of law your absurd line of nonsense about “this AUMF and the illegal NSA actigy.”
“Commoon sense” would dictate that you cease and deist withthis nonsense about the AUMF; and realize that the AUMF is simply a rsule to justify abuse, illegal activity, and conduct that vioatles the laws owar
“Common sense” would dictate that the DoJ staff attorneys give up, realize you cause is lost, and that your defensesa bout the unlawful NSA activity is known to even the most stupid of bloggers;
“Common sense” would mandate that the best we can expect is that the DoJ saff attorneys drool on thselves in that they cannot explailn what happened to the NSA inercepts that were collected prior to Sept 2001
“Comon sense” would mdnate that the DOJ Staff attorneys admit that they cannno defend -- relying on the AUMF – the pre sept 2001 intercepts were already violating the law.
“Common sense” would mandate that you give up, in that you cannot can you defnd the use of AUMF to create new exceptions – gvein Gonzalzex subseuqnetly asked for more changes to FISA in 2004.
“Common sense” would make you realize that you move without regard to the laws of war; you defy your oaths; and that you are no better than Hitler’s lawyers; and that you are a threat to the US Constituoin; and should have your bar certification/accreditation revoked because of your inability to assert the rule of law nor protect the Document as you took an oath to do.
Doj Response to Question 19
The plain text of the Force Resolution demonstrates that Congress provided the
necessary authorization for the President to exercise his solemn constitutional obligation
to prevent further attacks on the United States. The preamble of the Force Resolution
states that the United States must “exercise its rights to self-defense and [] protect United
States citizens both at home and abroad.” The Force Resolution recognizes the
constitutional obligation of the President to protect the nation from attack: “the President
has authority under the Constitution to take action to deter and prevent acts of
international terrorism against the United States.” Most clearly, the Force Resolution
directly authorized the President to use “all necessary and appropriate force . . . in order
to prevent any future acts of international terrorism against the United States” by those
who perpetrated the September 11th attacks. Under the terms of the Force Resolution,
not to mention common sense, the President need not wait until al Qaeda executes
another “actual attack” on United States soil before taking protective action.
Commentary on Question 20
This question focuse on language that sounds nice.
The problem – as you read later in the DoJ responses – is that the basis for interceptions is one of belief. This is at odds with the question which asserts a differst satndar of “merely support”.
Further, FISA’s “knowing” standard – as an exception to the warrant requirement – requires active action. Yet, the later DoJ responses use merely an assertion, or believe. The DoJ responses to 20 need to be taken in light of the actual basis NSA issues to intercept and taret Americans: Based on stanards that are at odds with the US Constitioin, the FISA exceptions, and in no way related to bonafide targets or military operations.
Rather, the NSA has simply used all means at its disposal to justify whatever it wants. Rather, the “Best” that the DoJ staffers can do is offer up non-sense, and crate a fictional link between the AUMF and the 2006 vioaltions. It is our postion that the 2006 Actvities are not linekd witht eh AUMF; and that the 2004 Gonazlez updates to FISA break this link between the NSA 2006 illegal actiiteis; and that any mention of the AUMF is frivolous in that Gonzalez actionsin 2004 shows the AUMF is not a balanket approval of everything, but there were actiies that were outside FISA.
It remains to be understood to what the phone companies helped craft langaue for the DoJ to provide Congress. Congress needs to ask:
Question 20
20. The January 5, 2006 CRS memorandum states, “To the extent that the
President’s executive order authorizes surveillance of persons who are
suspected of merely supporting Al Qaeda or affiliated terrorist
23 37 CRS Memo.
17
organizations, it may be seen as being overly broad.”24 Does the President’s
executive order provide that persons “merely supporting al Qaeda” are
covered? The CRS Memorandum appears to attempt to diminish the
concern of those supporting al Qaeda in the U.S. What could be the
consequences of the actions of a person “merely supporting al Qaeda?”
Commetary on DoJ response to question 20
DoJ does not address the vagueness of the term. Rather theysimply focse on the “narrow program” all the While faling to address the other acitigies not included in this narrow definition.
Note also the use of “belief” – that is at odds with previous assurances that the survillenace was on the basis of probable cause.
Note the DoJ response says, “The Program is not targeted at innocent bystanders.” – this means that the “other programs” do target innocent bystandards, and was the basis for the pohone company concern in 2004, prompting changes to FISA – and proof that the AUMF-argument – as an “all emcompanssing excuse to wage war against America” – is defective, and is not solid.
Notice this quote suffers from the following problems;
This type f conduct materially undermines confidence in the American legal system, the lwa enforcement, and the notion that the NSA is “on our side.” Rather, it looks more like the NSA is “doing what it wants” – as it did during the cold war – but now has been caught, but wants an excuse. The issue is that American know –even the most stupid of bloggers – that the NSA contractors and phone companies have hitched their futures to this illegal conduct.
When we read the comment “actdions” and “Could” this is very vague: This means nothing. Rather, we the Peole “cold” interpreate this as merely another JTTF-law neforcment exuse to ignore the BILl of Rights, and the 4th Amendment.
Given the NSA montoring prir to 9-11, it is reaosnble to ask what role the NSA played in supporting the attacks in September 2001. It would be a real shame if the entire post 2001 agenda was to “shift attention” to somewhere else, with the hopes of disatracting attention form the obvious, well known, and glaring explosision in front of the aerospace vehicle colldiging witht eh towers; and the obvious, glaring, and noticeable upward explosive movement of debris along the ridge lines of the towers.
It remains to be understood how many in the Joint Staff – using DoJ’s reckless definition of support of terrorism – would, by the malfeasce durin the pre Sept 2001 illegal monitoring – have satisfied the “support” and “actios” standards required to render the members of DoJ and the NSA to be in active support of rebellion aginst the Consttution.
Rather, we can made adverse jdugemetns:
Actions sufficient to render someone a member or agent of al Qaeda or an affiliated terrorist organization cannot be dismissed lightly. Such actions could, in many circumstances, allow our enemy to launch additional attacks within the United States.
There is no basis to believe that th e”probable cause” standard is a real standar; rather they simply use the “we believe this because we want to abuse someone, but we’re nto sure, so we’ll just find a scapegoat.”
You are not leaders, you are war criminals, barbarians, and have violated the laws of war.
DoJ’’s responses appear to be highly coordinated with other personnel; and the tone of the remarks suggests that many of the comments were crafted using themes and talking points, not bonafide responses.
It rmains to be understood which talking points and themese were shared with which DoJ Stff attorneysand contractors when craftin these responses.
Thes responses appear more emotional, not well founded in common sense, and the alines of argument are more focuse on war like themse: Use of force, images of WWII, and focuson “big ascry thigns” – this is not all that impressive, and does little to inspire confidence that the basis for the NSA actities is well grouned in a legal fodnation.
We judge the NSA IG and Genral Cousnel are not relable; and they siply dpew foth non-=sense consistent with baloney from the White Hosue. They do not appear to have been all that intersteed in looking into matters. The igh turn over rate appears to be a problem witin the NSA’s oversas facilites; and we judge the ocmpetnece of the NSA IGs at the regional facilites is well below what the public should raonable expect. Clearly, the smart ones have left, and those who remain are loyal to rebellion, not to the Consttutoni or the rule of law.
DoJ Response
The Terrorist Surveillance Program authorizes the interception of international
communications only where one party is outside the United States and there is probable
cause to believe that at least one party is a member or agent of al Qaeda or an affiliated
terrorist organization. The Program is not targeted at innocent bystanders. Actions
sufficient to render someone a member or agent of al Qaeda or an affiliated terrorist
organization cannot be dismissed lightly. Such actions could, in many circumstances,
allow our enemy to launch additional attacks within the United States.
Back to top
Questions 21- 31
Important warning to DoJ
Your staff attorneys have made inflamattory comments suggesting there is a state of war between American civilians and the Federal Government.
This is irresesponsible.
We do not advocate violence. it is the job of the DoJ and White House to immediately revoke and disance themselves from any comment that suggest that the ilelgaly NSA activity agianst Americn civilans is for combat support. If asserted, this is a war crime: Miltiary force may not be used illegally against Civlilians.
I repeat: DoJ and teh White House must clarify theier statements: Is there or is there not a state of war between the Feearl Goernment and American civilians?
If the White House does not clarify itself, then we will presume that the DoJ statements should be taken as what they state: That the Illgal NSA activtiy is part of ongoing combat operations; and taht the Feeral Goverment knows that the illegal use of this miltary force is unlawfully directed at American civilans on contravention to the alws of war.
If w eassume that that statement is true -- and waht the White House is aying -- then the White House has fatally asserted that American vilians may be targeted using miltiary force in violatino fthe Posee COmitatus Act; and that US citizens are -- in turn -- protected by the laws of war, and mawy lawfully retealate in kind.
Is this what the White House wants the public to conclude? Yes or no? If not, then you have some expalining to do: Why are you making reckelss, irresponsible, inflamaatory satements about whether there is or is not a state of war between the Federal Government and American civlians?
If the White Hosue does not removek tehse statmeents immediately, we can only conclude that a state of war exists -- and that the states may take lawufl action under Aritlce IV to protect themselves form this continued miltiary non-sense and vilation of the law; and that US Citizens under the prinple of reciprocity may ignore the laws which the NSA and White Hosue ignore.
is this what the White Hosue intends? Is this what the DoJ wants? IF the answer is no, then you need to immedately distance yoruself from what you have said; and deny that the NSA is a lwful use of force directed at Americn cviilans.
Rather, unless you immedately stop vioating the law -- and contniue to assert that thi unlawful use of military force is to be assented to -- then under the laws ofwar, Amreican civtizen may smiialrly vioalte the laws you ignore: The US Constituotin and other laws of war which you are violating. Again, I repeat, is this waht you intended? Is this what you mean? If not, then you have a problem and need to imemdately stop sayign this.
Ont the other hand, if you do not revoke and deny what you are saying -- taht at state of war exists, and the NSA miltary forces are going ctonieut to be uanlfwuly useed against civilians -- then you have asserted that there is a sate of awr; and American civlians may lawfully vioalte the same laws you are ignoring. Again: Is this waht you intended; is this waht you mean; and do you udnerstand what may lawflly happen under the laws of war: You have lawfuilly opend up the American Goernment to alwful retalation by the American citizens whose rights you are unalfwully vilating usign illegal forces. Is this waht you intended? If not, then you have a problem, and need to correct your statements.
On the other hand, if you fail to correct yourself, and ou continue to assert that th eNSA ilelgal use of force gainst cviliians -- as DoJ says is going on per the AUMF -- then you cannot say anthing once thoe laws you vioalte are reciprocally vioalted: Constituoin ignored; and your rights lawflly vioalted in a similar war. Is this waht you intede; and is this what you want to have? If not, then you need to immedately idstance yourself form your irresponsible statements.
sae do not advocate vioalte. We encourage teh White House and DOj to stop making irresonsible legal statements that merely inflame the situatoin and ask the public to presume there is a reaonble expectatoin that greater force and other metohd smay be use. Unless you revoke and deny the statemsn you are making -- and expclityl cease all illegal actoin against American civilians -- then by your actions you are saying that you understand the American civliians may lawfully ignore the alws of war you vioalte and may lawfully ignore the same Constituotni you ignore.
Choose: Do ou want your Constituoin or not; if you do, then you need to speak uo now and deny all that you have said in the follwoign comments. If not, and you continue to say this non-sense, then We the People may laufwlly revoke your power, and cretae a new Constittoin that will prevent you from ever being able to abuse your powers.
The choice is up to you. Until you respond, you are deemed to be an Enemy of the American Constitutoin. You have failed to responsibly use power. That is your prblem and it is at the hear of your legitimacy problem: YOu have no legitimacy.
DoJ fatally admits that the illegal NSA actvitiy is a use of military force, in violation of the Geneva Conention which prohibits illegal use of military forces against civilians. The DoJ has fatally admitted that the White House is – by using the NSA as a military force against civilians – is illegally waging war against American civilians. Per the laws of war – which DoJ asserts is the basis for the NSA to illegally use combat forces against American civilians -- No laws which the White House is violating need to be honored. Under the laws of war – which the DoJ asserts is part of the NSA use of illegal force against Amreicans – the rule of reciprocity is permissible: Laws which one party violates need not be respected by the other parties; we did not choose this battle; rather, we have had this illegal war thrust upon us. This means that because the White House is violating the Constitutoin, the American people no longer need to honor the same laws which the White House ignores: American civilians no longer need to honor the American Constitution. Rather, we may – by DoJ’s fatal assertion – make the reasonable adverse inference conistent with the laws of war that the US Constitution has been effectively revoked and no longer has any legal authority or foundation for the American Federal Government. Rather, the American Federal Government – because it moves without regard to the Consttution – is a rogue nation; it is in defiance of its treaty obligations, and is no longer legitimate. American civians were not given a choice about this illegal use of military force; nor have we had sufficient time to train, equip, or adequately equip ourselves with uniforms. Rather, under the principle of levee en masse – when a military force quickly moves and invades, the civilian population is relieved of the reuqirment to weaer uniforms. American civilians – if detained in this illegal war – may not lawfully be deprived of any rights or priviledges afforded to them under the Geneva Conventions. Rather, all American civians who find themselves occupited, invaded, and subjedfct to the illegal use of force – retain all rights under the Geneva Conventions even when they are out of uniform. Under the principle of recipcority, there can be no basis to hold any American accountable for any violations of the US Consrtitutoin which the Federal Government has first violated. American forces are undercover, move without identification; thus there is no lawful requirement – under the laws of war and reciprocity – that Americans so targeted may be lawfully required to do what the Fedearl Government refuses to do: Tell the trtyh, show respect, adequately identy themselves, or respect th laws of the land. Rather, We the People – because this war has been unlawflyly imposed upon us – and in a manner that DOJ illegally asserts is lawful – are not longer bound to assent to any laws which this Federal Govrenment violates, disobeys, refuses to follow, or otherwise states we must follow. DoJ has fatally asserted – by relying on the AUMF to justify the NSA illegal use of military force against American vicilanbs – that there is a state of war against American civlians; and that Americans – because of the speed of this action – are neither bound by the US Contitutoin which the President ignores; nor arew we required to wear military unforms. Despite the violations of the laws of war, American civians may choose to respect those laws of war which the White House respects. Those laws of war – and the priknciples consistent with levee en masse – means that no Americna civilian is required to wear a military unform; rather, we remain lawful combatants under the laws of lwar even whwen we wear civilian clothers. Any effort by the DoJ or White Hosue to assert that Americans – because they have been illegally targeted by the NSA, and are the subject of ongoing combat targetin by what the DoJ says is a use of force – must assent to laws ignored is absurd; nor may Americans be compelled to honor a Constitoin which this President defies. Rather, all DoJ assertsions – that the NSA activity is a use of force -- constitutes a war crime against American civlians. The law of receiprocity permits Amreican civilians to lawfully violate these same laws of war when it comes to interacting and dealing with those in the Federal Government. DoJ has fatally asserted – and thereby revoked – any legal foundation to jistfy following the Consttutoin, or any law which the White House is violating. DoJ has fatally admitted and asserted that there exists a aste of war between the Federal Government. This constitutes – under Article IV – sufficient evidence for the States to seek external assistance, and lawfully take other appropriate and necessary actions to prtoec their constituoanl governments against further unlawful attacks by DoJ, the White House, NSA, and Joint Staff. DoJ has fatally asserted that the NSA activity is part of a war. This constitutes an illegal use of military force against Civilians. This is a war crime. DoJ has fatally asserted that there is a state of war between “whomver the White House whishes to target” and the Fedearl Government. The State of War is notsomething wse the People have lawfully delegated nor conferred upon the Federal governemtn; nor have we expressly dlegated them the power to illegally use military force in a manner that contradicts the Geneval Convnetions. The United States government has fatally asserted that it is no longer legimate, that it is an outlaw state, and that its illegal use of force amounts to it being the lawful target of similar use of military forces which the NSA unlawfully uses against Americans. You have wished for this. Any effort to state otherwise simply proves the American Government is as hypocritical against MAericans as it is against Iraqis. |
Commenatary on Question 21
Note that DoJ failed to refute – what they should have refuted – thqat the use of NSA interceptions against Americans constutes a use of force.
This is a fatal failure to deny what a should ahv been denied if it was not going on.
Question 21
21. The January 5, 2006 CRS Memorandum states, “While the collection of
intelligence is also an important facet of fighting a battle, it is not clear that
the collection of intelligence constitutes a use of force.”25 Do you agree?
Commentary on DoJ Response
DoJ’s response is a fatal assertion that the NSA military activites are an unlawful use of military force against Civilians.
By relying on the AUMF, and asserting that the NSA illegal activity – directed at Americans – is authorized, DoJ has fatally admitted what we’ve long sustpected:
DoJ’s problems only get deeper. By asserting non-sense to justify non-sense, DoJ is fatally backing itself into a legal argument which is not only at odds with the COnstritutoin, but – if taken to its logical conclusion – simply affirms the right of those so absued to similarly ignore the laws DoJ, NSA and the White House are ignoring, namely:
Under the laws of reciprocity, the NSA has lost the power and right to claim that it is immunity to any similar violation of the law; and cannot claim it is immune to lawful retaliation against the NSA employeeds who have supported this illegal activity.
We would prefer to rely on the court of law; however, it appears the White House has fatally asserted that the courts no longer need to be adhered to – as by their fatal admission that the FISA court does not have any say on the matter.
Rather, because the NSA and White House employees have condoned this action – unawfly use of military force against civilians – then American civilans may violate the same laws and subject all NSA employees and contractors to the same intrusions and violations without any basis to assert a claim against those who take this action.
If DoJ does not like the implications of what they are saying – then they need to stop advocating the unlawful use of military force against American civilians.
It remains a matter of time to what extent the DoJ does or does not retract or distance itself from these fatal rmarks. It is DoJ htat is asserting that the unlawful use of mitlariy force is to be assented to; but DoJ fails to understand what it is advocating: The unlawful use of fmilitary force against civilians in violation of the Geneva conventions.
American civilians need not respect those laws of war which the NSA is violating. It remains to be understood whether the NSA contractors – because they violate this law – will be lawfully targetd in a like manner that they have unlawfully targeted American civiliasn. We canonly speculate.
We do not advocate violence. Rather, we assert the right to have the Consttutoin respected; if the NSA and DoJ assert they have the right to violate the law – and that force because it is, as DoJ asserts related to combat operations – then American civilans may similarly violate the same laws – lawfully targeting NSA contractors with the same types of intrusions which would otherwise violate the Constitutoin, and do so without any fear that any detention or sanctions for that conduct is lawful.
Rather, under the laws of war – once aAmerican civlians who may lawfully retaliate against NSA contractors for their illegal support of what the DoJ asserts is a use of force against American civilans – are detained, that detention is illegal and subject to similar alwfulu retatlation of makingn siilar detentions of NSA contractors.
IS this was DoJ means? Is DoJ saying that it approves of American civilians lawfully reciprocating by detaining NSA contractors? If this is not what the DoJ is saying, then it needs to immediately stop using the AUMF as the basis for the NSA illegal actvitiy. Unless DoJ publicly distances itself from what it is saying, then the public will have to wonder: How many violates of the law is DoJ and the NSA willing to invoke; and what excpeitons to the laws of reciprocity is the NSA and DoJ conting to invoke to unlafwlly detain those who lawfully retaliate against NSA contractors.
Why is DoJ so stupid on the laws of war? Clearly, DoJ lieks to pain “big pictures” of threats, but expects Americans to just lap ity up. You’re wrong. You have to choose the laws of war; you may not lawfully assert a power to use illegal force – DoJ’s waors – against Americans.
The White House has asserted – contrary to the law of reciprocity – that it has a superior right to be immune to overishgt; but can impose oversight in a manner on the American People that violates the law.
This is a non-starter. DoJ has fatally admitted that the White House conduct not only violate sthe law, but is linked with ongoing compbat operations directed at Americans; not only does this constitue a war crime againt Americans, but American citizens – because of this violation of the laws of war, in not using force against American civilans in vokatohn of the law – may now lawfully ignore the laws which the White House is ignorig: Namely, the US Constitutoin.
We are not bound to recognize the unlawful use of military force and power; nor are Americans compelled to assent to further attacks on the Consttution. Rather, the states -- -- given the already admitted attacks on Americans with illegal use of military force and technology, and the threat to the Consttutoin is not longer imminent but self evident -- may lawfully seek assistance form outsie the Untied States, and there is nothing the White House may lawfully do to prevent the States from taking action to defend itself from the continuing unlawful use of – what the DoJ calls – military force.
It remains to be seen to what extent the ineffectual White House chooses to further interfere with the States’ rights to protect itself, and ensure it remains uncer a Constitutoinal government. This White House ha snot ontlyfailed to defend the country – despite the illegal NSA monitoring prior to 9-11 – it now is an active player in using military forces to undermine the Consttutoin, ignore the laws, and force the States to assent to this barbaric approach to the rule of law.
We find the lessons from Iraq instructive. Where the White House fails, it will blame others. Where the White House provesn to be incapable of assenting ot the rule of law, it will compel others to assent to that decent to anarchy.
We have seen enough. It is the responsibility of the states to discuss what is to be done when a dictator in the White House further uses military forces – in what DoJ assert is lawful us of military force against innocent civilans – to not only violate the Consttuon but to suppress discussion and lawful measures to effectively defend the States against the Congress and Federal Government.
DoJ has fatally admitted that the NSA activity – illegally used against America – is a use of force. The problem is that the AUMF did not authorize the illegal use of military force against American civilians, nor does the Execuvie have the power to wage illegal war against amreicans unless Congress expressly grants him the power to wage war. However, the COnstrtution does not confer any power o nCongress to assent to an illegal use of force, only lawful use of force.
DoJ’s problem – in relying on the AUMF as the basis to assert the use of force, and call the NSA activity a lawful use of force – is that it is defeating itself on the higher principles: The use of force – as it is applied against Americans – is at odds with the laws of war, is contrary to the Geneva Conventions; and no reasonable leader on the Joint staff or the White Hosue could argue otherwise. By assering that the NSA acdtvitiy is linked with a “use of force” – DoJ has fatally fallen into the trap of explaning how this “lawful use of force” is consistent with the Geneva Convention which bars military force when it violates the law.
DoJ cannot credibly argue that the use of military force against ciilvans is either appropriate or necessary. And the Hamdi case in now way supports the contention that the the FISA exceptions to the warrant requirement can we expanded to include “whatever the NSA gets caught doing.”
DoJ further confirms its illegal use of force doctrine when it relies – although incorrectly – on the Hamdi case in asserting that the NSA activity is a use of military force; or that the illegal use of force is somehow appropriate and necessary.
DoJ Response
The suggestion that the collection of intelligence does not constitute a use of force
for purposes of the Force Resolution is incorrect. As Justice O’Connor explained in
Hamdi, fundamental and accepted incidents of military force constitute “an exercise of
the ‘necessary and appropriate force’ Congress has authorized the President to use.”
Hamdi, 542 U.S. at 518 (plurality opinion). It has long been accepted that the collection
of intelligence is an integral element of the use of force, just as one must aim a rifle
before firing it. As Chief Justice John Marshall (who himself was an officer during the
Revolutionary War) said of George Washington (a renowned master of military
intelligence), “A general must be governed by his intelligence and must regulate his
measures by his information. It is his duty to obtain correct information . . . .” Tatum v.
Laird, 444 F.2d 947, 952-53 (D.C. Cir. 1971) (internal quotation marks omitted), rev’d
on other grounds, 408 U.S. 1 (1972).
Response to DoJ remarks below
DoJ has a problem. It is asserting that it has the power to wage war against one party by waging war against a civilian population. This is absurd.
It is not necessary, or appropriate to say that “violating the US Constituon” is a necessary prepraeation for the use of force.
Rather, it is the opposite: When the Constituoin is violated; the conduct is not logner legal.
DoJ fatally distinguiehs between “support for combat” and “actual use of force.” DoJ’s problem is that it has admitted that the NSA activities are related to combat operations; any DoJ surveillance and interference of efforts to similarly support Americans in their loawful opposition to this illegl war is similarly protected and cannot constitute a crime.
In the theory of DOJ—all support activites are related to combat. Thus, any NSA contractor support actvities – however unrelated they are to the actual use of NSA force against civlans – is an illegal support activity. Does DoJ realize that it is saying that the NSA support functions constitue an illegal support of illegal activites?
Indeed, DoJ’s assertions are absurd: They ask the Americna civialians to put up with this illegal use of miltairy force as if it “were no big dea.” ON the contrary, a reasonable person would – if relying on the DoJ’s fatally admission – have to conclude that the DoJ’s activities have one goal :To endorese the illegl us of Military Forces against Americans, and in so doing justify violating the Geneva Conventions.
We cannot make a judgement as to whether DoJ is serious or not; rather, relying on their freely provide responses, the reasonable inferences is that DoJ is sending a green light to expand the war against American civlians to include anything that may or may not be related to commeting on, or asserting the US Constritution.
The self-evident conclusions is that the President – by the Doj”s assertion that the NSA activitiy is a use of force – is waging war against American civlians. Any mention of what is or is not happening in Afghanistan is of minor concern given the actual use of combat forcews against Americans in the Continental United States.
Using force does not mean an illegal use of force; nor a green light to wage war – using DoJ’s words – against American civilians.
Where does DoJ draw the line on “supporting elements” when it wages war against Americans?
If we apply the rule of reciprocity, then the American people can alo similarly anticipate future aattacks.
What do the American people do? We no longer have to call this nonsense what it isn’t: It’s not war against AleQueda. This war is against American civilans, and the US constitution.
It doesn’t matter what the President may or may not decide who did or didn’t do antying; the real fact is that the NSA is waging illegal war. It doesn’t matter what excuse the DoJ gives.
In short, the Execuvie has illegally conferred power on himself to wage illegal war, and do whatever he decides he wants to do.
The American civilians – under the law of reciprocity – may similarly do the same. Is this what DoJ is advocating: That American civlians be allowed to indepdnetly decide what is or is not a lawful response?
The Eecugvie has not been conferred nor specifically delegated this power.
Is the DoJ advocating the unalfwul use of mitalry force against Civilians? [Yes or No]
Is DoJ stating that there is a war against American civlians? If not, why is it saying that the NSA use of force is legal? How can the use of NSA force against civilans be legal?
Is DoJ saying that the Consttutoin is not longer to be followed?
IS DoJ saying that all NSA activites are lreated to a use of force?
What is DoJ’s position on the Geneva Conention: Does the Geneva Conventoin apply?
What is DoJ’s view on levee en masse: Does Level en masse apply to Americn Civilians? What is DoJ’s positon on Americans how may be illegally detained for lawfully retalioating aginst the unlawfyuluse of military force against Americans? Does the rule of reciprocity not apply? Does DoJ plan to detain Americans who invoke their Geneva Cnenion right to lawfully retaliate by violating the same laws which the NSA ignores?
What laws does NSA plan to enforce to avoid sanctions for their illegal conduct?
How does DoJ reconcile that Geneva Conventoins – which permit the vlation of laws bu those who are targeted by the offending party – with what is going on in America.
Does the DoJ plan to detain people who may lawfully volate the laws which DoJ and the White Hosue are violating?
If DoJ views the “supprting elements” as legitimate targets, then what is to say that DoJ does not view ‘thos who may or may not support the lawful retaliation against the NSA by violating the same laws” as a reasonable effort?
Where does DoJ see this ending?
Why is DoJ saying that vioaltins of the law by the President are permitted; but those who are the subject of those violations have to assent to those violations?
Why should Americans – after seing this Exeucvie ignore the Consttuion – given the consttuoin any deference or respect?
How does DoJ justify confidence that the President is really taking action agasint those who are responsible for the events on Sept 2001: There is no straigt answer on the explosives in the world trade center towers; what information does NSA have on what they know about who placed the boms inside the building.
DoJ Response
In authorizing the use of force against al Qaeda, the Force Resolution
undoubtedly authorizes actions that constitute necessary preparation for the use of force.
For example, it undoubtedly authorized the transportation of munitions and medical
supplies and even battlefield intelligence officers to Afghanistan, although the mere act
of transportation might not, under the CRS memorandum’s theory, itself be “a use of
force.” Any other reading of the Force Resolution would lead to the absurd result that the
President is authorized to attack the enemy in Afghanistan, but is not authorized to
transport troops and materiel to Afghanistan to do the fighting. But the authorization to
use force necessarily also entails the traditional incidents of the use of force, such as
transporting fighting forces. By the same token, the Force Resolution does not require
the military to fight “blind,” but rather necessarily authorizes it to use the fundamental
24 Id.
25 35 CRS Memo.
18
tool of intelligence so it knows where and against whom to apply force, and to permit it
to anticipate attacks. That is what the Terrorist Surveillance Program seeks to do. If
there were any doubt on that score, it would be resolved by the fact that the Force
Authorization itself indicates that the President is to “determine[]” who was responsible
for the September 11th attacks in order to take action to prevent future attacks.
Commentary on Question 22
DoJ and the House are falling further into the trap. They are closely aligning themselves to assert that the NSA activity is part of combat. By using that miltaary force against American Civians, there is no other way to describe what the NSA is doing: Waging illegal war against Americans, vilating the law, and unalwfylly asserting the right to ignore the Consttiution.
If DoJ’s interrepation standars – that the NSA activity is related to combat oerations; then we have to spring board to the logical conclusion: That the illegal use of force is a violation fo the laws of war, and that as employed against Americna civlians is a war crime.
Either the CRS conclusion is correct – that the NSA intercepts are not sufficiently linked with the AUMF and not permitted; or the DoJ’s assertion is correct – and that the use of force by the NSA is illegal.
Either way, the NSA activity is contrary to what is permissible under either the CRS or DoJ contrcuts.
Quesiton 22
22. The January 5, 2006 CRS Memorandum explains that the “Hamdi plurality
cited the Geneva Conventions and multiple authorities on the law of war to
reach its conclusion that the capture of combatants is an essential part of
warfare.” The Memorandum then continues, “The Administration has not
pointed to any authority similar to those cited by the Hamdi plurality [at
518-19] to support its proposition that signals intelligence is a fundamental
aspect of combat.”26 Do you agree with the assumption made by CRS that
signals intelligence is a less than conventional aspect of the conflict that
would lead to its categorization as non-essential?
Commentary on DoJ response below
DoJ – by rejecting the CRs construct – fatally asserts the opposite: That the NSA actvitiy is though to be part of a larger combat operation against American civlians.
It is not authoriaed – under the laws of war – to illegally target Aemricans with military force in a manner that violates the law of the land.
DoJ fails when it relies on the Hague Contention: The US ignores these treaties.
The US does not have the power to violate the law.
What does DoJ view as permissible under the laws of war by civilians who are unlawflyly targeted?
The longer DoJ relies on the “we’re at war”-argument to jsutfiy illegal conduct, the worse DoJ’s position is: The American civilian population may lawfully violate the aame laws the NSA is violating without any fear of being lawfully detained. Rather, all detentions of American civilans – who choose to lawfully volate the same laws the NSA is violating – are illegall and subsequent violations, subject to war crimes sanctions. All military personnel know the 5100.77 laws of war; and on reasonable US military member may claim that they “didn’t know” the laws of war – as the NSA vilaltes – permit increated threates and intrusions against American civilians.
DoJ response
No. In our paper of January 19, 2006, the Department of Justice explained at
length that signals intelligence has long been recognized as integral to wartime operations
and authorized by the laws of war. See Legal Authorities Supporting the Activities of the
National Security Agency Described by the President at 14-17. To take but one example,
Article 24 of the Hague Regulations of 1907 could not have been more clear: “the
employment of measures necessary for obtaining information about the enemy and the
country is considered permissible.” See also Joseph R. Baker & Henry G. Crocker, The
Laws of Land Warfare 197 (1919) (“Every belligerent has a right . . . to discover the
signals of the enemy and . . . to seek to procure information regarding the enemy through
the aid of secret agents.”) (emphasis added). When combined with the long history of
this Nation intercepting communications into and out of the United States during time of
war, as well as Supreme Court decisions recognizing the President’s authority to conduct
intelligence activities, see, e.g., Totten v. United States, 92 U.S. 105, 106 (1876); Chicago
& S. Air Lines v. Waterman S.S. Corp., 333 U.S. 103, 111 (1948); United States v.
Curtiss-Wright Export Corp., 299 U.S. 304, 320 (1936), the Executive Branch has
demonstrated that signals intelligence—like the detention of enemy combatants approved
in Hamdi—unquestionably is a fundamental and accepted incident of war.
Commentary on Qeustion 23
Question 23
23. The January 5, 2006 CRS Memorandum states that “a presumption that the
authorization [in the AUMF] extends to less conventional aspects of the
conflict could unravel the fabric of Hamdi, especially where measures are
taken within the United States.”27 Do you agree with CRS’ presumption
and conclusion?
Commentary on DoJ response
DoJ response
No. The plurality opinion in Hamdi stands for the proposition that the Force
Resolution authorizes the President to use the fundamental and accepted incidents of war
26 Id.
27 Id.
19
in prosecuting our armed conflict with al Qaeda. There, five Justices concluded that the
Force Resolution authorized the detention of an enemy combatant within the United
States. As demonstrated above, conducting signals intelligence against the enemy is
precisely such a fundamental incident; it is not somehow a “less conventional aspect of
conflict.” Moreover, during previous wars, Presidents have used electronic surveillance
of communications into and out of the United States on a scale far broader than that of
the Terrorist Surveillance Program. To assert that the Force Resolution, or the successful
prosecution of the armed conflict with al Qaeda, does not involve actions within the
United States aimed at preventing further terrorist attacks in this country is to ignore the
nature of this conflict.
Commenary on DoJ Statement Below
Where is the NSA data collected prior to sept 2001?
Which program failed?
What did the US know about the pre planning prior to Sept 2001?
Why should we believe that the US is better capable of doing – what it has not fixed – in 2006 than what failed in 2001?
Are the states not just as likely to face a threat
Given the apparent US government involvement – does DoJ assert that the NSA activity is going to target those in the US Government which supported, failed to investigate, knew about, and otherwise covered up the Sept 2001 events?
DoJ statement
The United States was attacked on September 11th, not by planes
launched from carriers hundreds of miles offshore, but by foreign agents who had resided
within the United States for months or years. The Terrorist Surveillance Program is
directed at undermining precisely that demonstrated capability of the enemy.
Commentary on DoJ Response
Protecting American citizens doesn’t mean destroying the Consttition or denying them the right to be free; nor does nit mean violate the law.
Congress asserted that there is an AUMF; but the AUMF does not explalin
It is not both “necessary” and “appropriate” for the President to violate the law in oder to protect the Constitution.
He’s already demonstaretd – despite the NSA monitoring prior to Sept 2001 – he can’t do his job; he’s failed to protect the nation; giving him more power to do what he cannot do idsn’t going to sovle the problem. Rather, we need a new leader, not a new excuse to wage illegal war.
It is a stretch to say that all force may be used against people who “just happen” to wander into the NSA umbrella.
One cannot credibly argue they are “protecting or defending” when they engage in the same violations
It is a red herring to focuse on whether the conduct protects the Country; thie issue is whether the rule of law will prevail, and whether the Constitutoin is protected.
Does the Presdent plan to suspend the write of Habeas corpos?
The PResient makes a tenuous leap in justifying llegal actin; what’s to stop him from making other tenous leaps: Not the Congress and not the courts. He does not assente to the rule of law in Guantanamo, even after being publicly smeared over the evidence of war crimes.
It’s too far tenous – given the intervening Iraqi operations – to assume that any conduct in 2006 is related to 2001 resolution.
Invoking laws ignored: War Powers
By relying on the war Powers act – in the 2001 joint resolution – the President has a problem. Congress did not authorize this specific use of force, nor does it authorize the use of this force as required in Sec. 5(b); not has Congress authorized these exceptions or permitted the force within 60 days as required.
Illegal appropriations
Congress hasn’t been kept informed or abreast of what has been going on; there’s no basis to say that the appropriations are lawful; nor that the money spent is for the reasons appropriated, another violation of Article 1 Section 9; Compelling the Executive to only spend money for authorized activity.
It’s been more than four years – how long is this excuse of Sept 2001 going to be involved to violate rights?
DoJ response
In determining whether the Force Resolution should be read to authorize action
within the United States, it is helpful to note that, in it, Congress expressly recognized
that the September 11th attacks “render it both necessary and appropriate that the United
States exercise its rights to self-defense and to protect United States citizens both at home
and abroad.” Force Resolution pmbl. (emphasis added). Congress affirmed that “the
President has authority under the Constitution to take action to deter and prevent actions
of international terrorism against the United States.” Id. (emphasis added). Accordingly,
Congress authorized the President “to use all necessary and appropriate force against
those” associated with the attacks “in order to prevent future acts of international
terrorism against the United States.” Id. (emphasis added). In addition, when Congress
passed the Force Resolution on September 14, 2001, the World Trade Center was still
burning, combat air patrols could be heard over many American cities, and there was
great concern that another attack within the United States would follow shortly.
Commentary on Question 24
Question 24
24. Professor Tribe argues, in his January 6, 2006 letter, contrary to the
Department of Justice’s assertion, that Hamdi supports the conclusion that
the AUMF cannot provide the requisite authorization by pointing to the fact
that “the Hamdi plurality agreed ‘that indefinite detention for the purpose of
interrogation’ even conceded enemy combatants ‘is not authorized’ by the
AUMF. 124 S. Ct. at 2641 (emphasis added).”28 Do you agree with
Professor Tribe’s argument?
Response to DoJ response
Hamdi case incorrectly cited. The case does not deny prisoners the right to have a tribuinal, as the government opposted.
Hamdi and the AUMF are generliaed; while the warrant exceptions – which would not require a FISA court review – are specific.
Rather than change the law, the executive chose to ignore it.
The Hamdi case does little to justify violations of FISA: nore does it permit conduct outside the warrant exception, especially when the conduct violates the law.
DoJ response
No. The Hamdi plurality’s statement does not support that argument. Five
Justices (the plurality and Justice Thomas) rejected Hamdi’s argument that, because the
war on terror might continue indefinitely, the Force Resolution did not authorize his
detention for the duration of the war. Hamdi v. Rumsfeld, 542 U.S. 507, 519-21 (2004)
(plurality opinion); id. at 592, 594 (Thomas, J., dissenting). The plurality agreed that the
laws of war generally permit the detention of enemy combatants for purposes of
preventing their return to battle until the end of hostilities. Id. at 520. Although the
plurality acknowledged that the duration of the conflict with al Qaeda may in the future
28 Tribe, supra note 12, at 5.
20
raise difficult questions about the propriety of extended detentions of combatants to
prevent their return to hostilities, it expressly declined to confront those questions
because “that is not the situation we face as of this date.” Id. Instead, Justice O’Connor’s
opinion concluded that the United States may detain enemy combatants “for the duration
of these hostilities.” Id. at 521. The plurality recognized that the laws of war and the
Force Resolution do not authorize “indefinite detention for the purpose of interrogation,”
as opposed to prevent return to the conflict. Id. at 521 (emphasis added). The plurality
based its conclusion on the lack of precedent supporting such conduct under the “law of
war.” See generally Curtis A. Bradley & Jack L. Goldsmith, Congressional
Authorization and the War on Terrorism, 118 Harv. L. Rev. 2048, 2091 (2005)
(explaining that, with the Force Resolution, “Congress intended to authorize the President
to take at least those actions permitted by the laws of war”).
Commenatry on DoJ Response
DoJ response
As noted in our January 19th paper, however, the law of war clearly supports the
use of intelligence surveillance during wartime. See Legal Authorities Supporting the
Activities of the National Security Agency Described by the President at 14; see, e.g.,
Joseph R. Baker & Henry G. Crocker, The Laws of Land Warfare 197 (1919) (“Every
belligerent has a right . . . to discover the signals of the enemy and . . . to seek to procure
information regarding the enemy through the aid of secret agents.”) (emphasis added).
Commentary on Question 25
Notice the AUMF argument – going forward – does not explalin why the FISA was updated. If the AUMF was blanket approval for anyting, there should have been no changes to FISA.
25. What legal precedents, if any, support the Administration’s position that the
September 14, 2001 AUMF directive to the President to use “all necessary
and appropriate force”29 against al Qaeda included the ability to authorize
NSA intercepts of al Qaeda-related communications into and out of the
United States?
Commentary on DoJ response
The Hamdi case doesn’t support the violation of the law. Moreover, the FISA changes in 2004 break the link between the AUMF in 2001 and the 2006 NSA illegal monitoring.
Moreover, this late in the game – and well after the second AUMF for Iraq, there’s little to belive that the NSA’s reliance on the 2001 AUMF are credible.
Rather, despite the AUMF of 2001 and the information and technology permitted, NSA did the opposite: And knew there was no WMD: but still assented to illegal war. This further destroys any DoJ reliance on the AUMF.
War cannot be waged unless is it consitent with law. The laws of war prescribe how power is to be used; these rules must be followed. We do not given combat troops blanket approval to “do twhat they wan” –r ather, their use of force must be constrained by the laws of war, and not be unreasonable. The US of military force – as DoJ decribes it – is not lawful when it is unalwfyully uses against cvilians in a manner that violates the law. This is a war crime.
Given the NSA monitoring prior to Sept 2001, it remains to be understood what infromatin NSA has related to the specific preparation. It is our view NSA has more information showing who inside the US government knew about, thwarted, and otherwise interfered with the lawful invewtigation.
That someone may or may not be hiding in the civilian population – is no excuse to ignore the laws and subject all cvilians to violations of the law. Rather, the way forward is to have sought – as was done in 2004 – changes to the law.
The Hamdi case is not a relevant foundation to argue that an NSA target is or is not appropriate based on their location. Rather, this concusion is supported independent of Hamdi and contained within FISA. Clearly, DoJ would like to assert a reasonable conclusion – that some warrantless surveilalce is permissible – by not expclily relying on FISA, but retroatively linking Hamdi. This is called arguing the right conclusion but for the invalid reason.
It remains to be understood to what extent FISA is ignored, and Hamdi used in combination with the AUMF to distract attention from the issue: The NSA actvitiy falls outside the approved exceptions under FISA; and Gonzalez affirmed the supremacy of FISA, and irrelevancy of AUMF when he sought changes to the FISA in 2004, three years after the AUMF.
Neither AUMF for either Iraq or post Sept 2001 can be relied upon for th e2006 activity. Rather, the 2004 chagnes to FISA follow the Iraq AUMF; we need not consider the AUMF or the Hamdi cases in decidingn whether the AUMF does or does not trump FISA> DoJ’s actions show they agree that the FISA trumps the AUMF.
Its far too tenuous to argue that the AUMF of 2001 or 2002 allowed violations of the constitution, or illegal use of military force against civilans. These are crimes.
DoJ Response
The Administration’s position is clearly supported by the Supreme Court’s
decision in Hamdi v. Rumsfeld, 542 U.S. 507 (2004). In Hamdi, five Justices concluded
that the Force Resolution authorizes the President to use “fundamental and accepted”
incidents of the use of military force in prosecuting the armed conflict against the terrorist
organizations responsible for the September 11th attacks. Id. at 518-519; id. at 587
(Thomas, J., dissenting). And, as explained at length in the Department’s paper of
January 19, 2006, the use of signals intelligence to ascertain the identity and intentions of
the enemy has long been a fundamental and accepted incident of the use of force. See
Legal Authorities Supporting the Activities of the National Security Agency Described by
the President at 14-17. Intelligence surveillance is particularly important in the present
conflict given the demonstrated willingness and ability of the enemy to blend in with the
civilian population until it is ready to strike. It follows that the Force Resolution, as
construed in Hamdi, authorizes the interception of communications where one party is
outside the United States and there is probable cause to believe that at least one party is a
member or agent of al Qaeda or an affiliated terrorist organization.
Commentary on Quesiton 26
Question 26
26. Putting aside the AUMF, can the Administration cite any legal precedents
that support the President’s authority to conduct searches for foreign
29 Section 2(a).
21
intelligence purposes in the absence of express statutory or judicial
authorization?
The Exeucive does not haver the inhrenet authority to conduct warrantless surveillance outside the FISA exceptions.
Those instances which are not an exception require a warrant. The issue is not whether or not we do or do not protect the country – we do; the issue is whether there is or is not a warrant required.
This President has the freedom to engage in warrantless surveillance when the conditions satisfy an exception. The situations the NSA is involve in do not qualify as an exception. This violates the law.
The President does not have the power to vialte the law; nor can he write new rules that create new exceptions; nor can he rely on case law or Congressional language which has been effectively trumped by contrary conduct. Namely, The President’s assertions – that he can rely on the AUMF – are destoyred by his own Attorney General’s conduct when he asked for FISA updates.
It is legal fication to assert – without a change to the consttuion or a change to FISA – that the warrant exceptions the NSA asserts they can rely on are real. Rather, these are illusions, desires, and speculative.
Citing Gorelick undermines DoJ’s position. The Gorelick case is once again misconstrued.
Here’s the transcript
Click
Mr. Chairman, I want to respond to you on the Jamie Gorelick/Aldrich Ames situation...
HATCH: Sure.
FEINSTEIN: ... because, in fact, the law was changed directly after the Aldrich Ames case. I called -- because I heard you say this before -- so I called Jamie Gorelick and I asked her to put this in writing. She has done so and I have it before me now. And she points out in this letter that her '94 testimony arose in context of congressional consideration of an extension of FISA to cover physical searches. And at the time, FISA covered only electronic surveillance such as wiretaps.
In 1993, the attorney general had authorized foreign intelligence physical searches in the investigation of Aldrich Ames, whose counsel thereafter raised legal challenges to those searches. Point: There was no law at that time.
And then she goes on to say that the Clinton administration believed, quote, "It would be better if there were congressional authorization and judicial oversight of such searches. My testimony did not address inherent presidential authority to conduct electronic surveillance which was already covered by FISA."
. . .
Later:
Senator Biden: She said the Aldrich Ames case is about physical search. FISA didn't cover physical searches, as my distinguished friend from Alabama knows. At the time they conducted the search, FISA did not cover physical searches.
And then she went on to say, "My testimony did not address whether there would be inherent authority to conduct physical search if FISA were extended to cover physical searches. After FISA was extended to cover physical searches, to my knowledge, FISA warrants were sought."
Bottom line: Every time DoJ mentions Gorelick, they’re hoping to do one thing: Confuse the issue. The law is about resolving ambiguity, not in muddying the waters.
DoJ’res response below fails to resolve the issue.
The issue is not whether there was an “absence of authorization” – rather, the FISA is clear: These are the exceptions to the warrant requirement; if you have no exception, then you have to get a warrant.
You can’t argue – as was done with the prisoner debate – that someone is or is not a lawful combatanta because you have no evidence. The burden rests on the government: Why are you doing this.
This DoJ has no answer: Rather, it appeals to ignoreance, attempt to create new sitations which “fall touside the law” and use that convoluted reasoning to justify illegal activity. That doesn’t add up.
DoJ Response
The President’s inherent constitutional authority to conduct warrantless searches
for foreign intelligence purposes has been repeatedly and consistently recognized by the
courts. See In re Sealed Case, 310 F.3d 717, 742 (Foreign Int. Surv. Ct. Rev. 2002);
United States v. Truong Dinh Hung, 629 F.2d 908, 913-17 (4th Cir. 1980); United States
v. Butenko, 494 F.2d 593, 602-06 (3d Cir. 1974) (en banc); United States v. Brown, 484
F.2d 418, 425-27 (5th Cir. 1973); United States v. Bin Laden, 126 F. Supp.2d 264, 271-
77 (S.D.N.Y. 2000). Truong, Butenko, and Brown all addressed pre-FISA surveillance
that was conducted in the absence of any congressional or judicial authorization.
Commentary on DoJ response
Physical searches is one thing – when you’re dealing with Amreicans in the Conteintental United States that’s quite another.
As to the issue of “ FISA could not encroach on the President’s constitutional power”
I’ll let Jao from the Glenn Greenwald Blog speak:
No court, at any level, has actually ruled on whether the President's inherent powers somehow trump the statutory requirements imposed by FISA. No court has even been asked to rule on that.
As for your questions about the non-binding dicta in the lower court, it is just that. It is not even a holding by that court. In this case, it was not even directly related to the holding, but an assumption for purpose of argument in explaining the court's opinion on a different question
Ref:
[ Click ]
Point: The DoJ is relying on non-sense to keep the issue out of court. The way forward is to get this issue before the court:
DoJ’s characterization of Gorelicks testimony is absurd and not useful to their argument.
DoJ response
Similarly, in Bin Laden the district court upheld the constitutionality of warrantless
foreign intelligence searches of a U.S. citizen overseas, including a physical search of the
individual’s home. Although In re Sealed Case involved surveillance conducted pursuant
to FISA, the court there expressly took “for granted” that the President has the inherent
authority to conduct foreign intelligence searches, adding that “FISA could not encroach
on the President’s constitutional power.” 310 F.3d at 742. Finally, as noted above, the
Deputy Attorney General in the Clinton Administration testified before Congress that the
President has inherent authority under the Constitution to conduct foreign intelligence
searches of the private homes of U.S. citizens in the United States without a warrant, and
that such warrantless searches are permissible under the Fourth Amendment. See
Amending the Foreign Intelligence Surveillance Act: Hearings Before the House
Permanent Select Comm. on Intelligence,103d Cong. 2d Sess. 61, 64 (1994) (statement
of Deputy Attorney General Jamie S. Gorelick).
Question 27
27. On January 21, 2006, the National Journal purported that President Bush is
“unilaterally interpret[ing] the law,” constitutional or otherwise, in the
“global war on terror.”30 Is this a proper characterization of the President’s
actions in authorizing the NSA program? What is the President’s role in
interpreting law?
Response to Qeustion 27
All laws faithfull executed means:
FISA actually expands the President’s power above and beyond what the 4th Amendment permits. So to say that this limits his power is absurd; rather, when he wants to engage in surveillance outside the FISA exception – the issue isn’t whether he can or cannot do so, he can – the issue is whether he does or does not have to get a warrant. He does: That’s what the Constituoin says; and that’s what FISA says.
If FISA was not good enough, then Goznalez should not have made changes to FISA in 2004, and siply shot back, “We have an AUMF, go away.” He didn’t do that, thus destroying his reliance on that in 2006.
The President does not have the power to assert his interpretation of the law and order people to vilalte the law. His interpretation of the law is omething that he uses to ensure compllance, not to ignore the obligation to comply.
It is fiction to assert the President has the power to interpret the law in a manner that is contrary to his oath to enforce that law. He may make a personal opinion on the law; but he still has to follow the law, not manufacture a legal nexus to do the opposite.
DoJ fatally relies on the laws of war to assert the Execuive can interpret the laws. Indeed, the alws of war – as does FISA – remain a guide to lawful use of force; nor something to be explained away. It is fiction to assert this exeucive “respets” the other branches – he ignores them.
DoJ response
The President is the Chief Executive of the United States, charged by the
Constitution to “take Care that the Laws be faithfully executed.” U.S. Const. art. II, § 3.
In addition, the President takes an oath to “preserve, protect and defend the Constitution
of the United States.” Id. art. II, § 1. In order to execute the laws and defend the
Constitution, the President must be able to interpret them. The interpretation of law, both
statutory and constitutional, is therefore an indispensable and well established
presidential function. Cf. Bowsher v. Synar, 478 U.S. 714, 733 (1986) (“Interpreting a
law enacted by Congress to implement the legislative mandate is the very essence of
‘execution’ of the law.”). In performing that role, the President is guided by relevant
judicial precedent, and informs Congress about Executive Branch interpretations of laws
through the oversight process. The President’s power to interpret the laws is particularly
important when he is engaged in a task—such as the direction of the operations of an
armed conflict—that falls within the special and unique competence of the Executive
30 Section 2(a).
22
Branch. The President’s role in interpreting the laws is not, therefore, a “unilateral[]”
one, but respects the roles of the other branches of government.
Commenatry on DoJ response below
The unlawful NSA actvitiy is at odds with the law. The Execive failed to get the required warrants. He affirmed the supremacy of FISA over the AUMF by seeking FISA changes in 2004, three years after 2001.
The President may under FISA enage in warrantless surveillance. The NSA operations he orderd fall outside these exceptions. He is not precdlude form engaging in surveillance; rather, he is afforded greater latutde to voalte the Consttution. Despite tehse exceptions, he still ignored the law and went above what was permitted. This is a crime.
What the Congress may or may not have been told has no bearing on whether the President’s conduct does or does not fall outside or inside the law.
DoJ response
The Terrorist Surveillance Program is in keeping with those well established
principles. It reflects authoritative judicial interpretations of the President’s
constitutional authority to conduct intelligence surveillance, as well as interpretations of
the Force Resolution and FISA. In addition, the Administration repeatedly has briefed
the leadership of the oversight committees about the Program.
Commentary on Qeustion 28
What Congress does or does not say in 2006 is mreaningless.
The law was clear in 2004. Gonazlez soght changes to FISA. The illegal NSA actvitiy failed to satisfy the warrant exceptions. The President borke the law.
The AUMF is not relevant.
Qeustion 28
28. On January 20, 2006, Senator Patrick Leahy introduced a resolution31 and
stated that he is “setting the record straight that Congress did not authorize
President Bush’s illegal spying program when it passed a 2001 resolution
governing the use of military force in the war on terror.”32 Please explain
the Administration’s position of what the resolution governing the use of
military force permits the President to do? Does it impose specific
restrictions on the President?
Commentary on DoJ response
The AUMF from 2001 is no longer a legal foundation for 2006 activities. Gonzalez’ actions in 2004 show the FISA trumps the AUMF.
The FISA does not prevent him from doing his job. Rather, FISA expands his power to violate the 4th Amendment. Despite tthat lattidue, this President exceeded his authority, directed surveillance eiwhtout a warrant. This is a crime.
DoJ has two different views on the AUMF. First it wants us to believe that it is expansive; then it is limitmed. DoJ fatally admits that the AUMF is limited in scope; and this limitation is confirmed when Gozalez changes FISA in 2004.
DoJ asserts that the targeting – of this narrowly defined program – meets the requirements. However, the full range of the unlawful NSA activity has yet to be understood..
The President does not have the power to voalte the law; it is not appropriate to do something outside the warrant exception.
If the AUMF permitted him to do anyting, then the President cannot explain why he sought any warrants at all. Rather, if the AUMF was as expansive as he argues, he should never have sought a warrant. He did seek a warrant; his conduct, combined with Gonzalez’ changes to FISA show us two things:
Permissible actdions include warrantless surveillance so long as they meet the exceptions. The conduct is not an exception.
Rather, DoJ is arguing about why the President is or is not authorized do do what FISA expressly allows im to do: Engage in warrantless surveillance. Indeed, FISA affirms this power, and grants the Exeucvie considerable ltatutide. Despite this latutide, the Execuvie still ignored the laws permitting the warrantless surveillance.
One cannot argue they are for the rule of law when they ignore the law.
The President definition of the program fails to fall within what is lawful; we can only imagine what other programs occur, and are similarly argued to be lawful. We can made the adverse judgement that the scope ofteh crimes is large, wide, well known, and far more disturbing. Wse do not need to gather additional facts to lawfully revmoe the President; rather, we can explore the full scope of the defective oversight once he has been lawfully removed from the political stage.
DoJ response
The text of the Force Resolution clearly confers significant power on the
President; it authorizes him to “use all necessary and appropriate force against those
nations, organizations, or persons he determines planned, authorized, committed, or aided
the terrorist attacks . . . in order to prevent any future acts of international terrorism
against the United States by such nations, organizations or persons.” (Emphasis added.)
A majority of the Supreme Court has concluded that that language authorizes use of
“fundamental and accepted” incidents of war. Hamdi, 542 U.S. at 518 (plurality
opinion); id. at 587 (Thomas, J., dissenting). Hamdi indicates that actions that, by
historical practice and under the laws of war, are fundamental and accepted incidents of
war are encompassed within the “force” that Congress has authorized the President to
use. Cf. Curtis A. Bradley & Jack L. Goldsmith, Congressional Authorization and the
War on Terrorism, 118 Harv. L. Rev. 2048, 2091 (2005) (explaining that, with the Force
Resolution, “Congress intended to authorize the President to take at least those actions
permitted by the laws of war”). Although the Force Resolution does not purport to
impose specific restrictions on the President’s authority, the scope of the Force
Resolution is not unlimited. For example, it authorizes the use of force only against those
nations, organizations, or persons that the President determines planned, authorized,
committed, or aided the September 11th attacks, as well as those that harbored the guilty
parties. Whatever the outer limits of the authority encompassed by the Force Resolution,
however, it is clear that the Terrorist Surveillance Program—which authorizes
interception only of those communications in which one party is outside the United States
and for which there is probable cause to believe that at least one party is a member or
agent of al Qaeda or an affiliated terrorist organization—fits comfortably within its terms.
31 Alexis Simendinger, The Speech – King for a War (Jan. 21, 2006), http://nationaljournal.com/pubs/nj/
(last visited February 2, 2006).
32 S. Res. 350, 109th Cong. (2006).
23
The AUMF is not relevant to the activity of 2006.
Commentary on Quesiotn 29
29. Does the lack of specific language in the AUMF referencing electronic
surveillance undermine the Administration’s contention that the AUMF
provides the statutory authority for the program to be authorized by the
President?
Commentary on DoJ reaponse below
There is no legal foundation within the AUMF, contrary to what the DoJ asserts. The AUMF is generalized; and the FISA is specific.
The Hamdi case arose because the AUMF lacked the langue to guide the court; the sitation with the NSA and FISA is the reverse: there is specific language w hich guides the Presient. He ignored those waivers, and crated new waivers outside what the Congress intended. Further, Gonzaelz 2004 chagnes to FISA confirm that he understood Congressional intent in the AUMF was at odds with what the President was doing. The Exeucvie didn’t seek changes because he viewed his own party as likely to reject the warrant exceptions. Despite knowing the requirement nto get Congressional assent; and knowing there was a problem with his conduct; and knowing the statute was not consisten with what hw ewas doing , he did it anyway. That is a crime; and that is consisten with his conduct in Iraq, Abu Ghraib, and Guantanamo, and the Patriot Act: He will point to “big sacary things” to get the law changed, then still vioatle the law.
AUMF need not be compared to any period outside FISA, especially when the FISA trumps the AUMF, as Gonazlez 2004 conduct affirms.
It does not follow that combat support operations – which violate the law – are supported or justified. Rather, that activity must rest on the law, not the defiance of that law.
What may or may not be lawful in combat is not related to what the AUMF does or does not say; nor can the AUMF be looked at throughthe lens of combat, but through the 2004 chagnes to FISA which Gonzalez asserted.
The exeucvie cannot pick and choose whether the law does or does not apply; nor self-describe which justifications and legal arguments make his conduct lawful. Rather, personnel in the NSA should know well that the President has no legal authority to order surveillance outside the warrant requirement; nor can he compel the NSA to vialte the law; nor does he have the power to engage in warrantless surveillance in a manner that is outside the excepetions in FISA.
FISA is epansive in granting and conferring power and options on the Exeuvie; despite that special trust, this Exeucvie violated that trust, and violated the law. HE should alwfluly be removed from office. He cannot be trusted to follow the laws he promises to follow.
DOJ response
No. In Hamdi, five Justices of the Supreme Court concluded that the Force
Resolution authorized the detention of U.S. citizens captured on the battlefield in
Afghanistan, despite the fact that the resolution does not expressly mention detention. In
reaching that conclusion, the plurality observed that “it is of no moment that the Force
Resolution does not use specific language of detention.” 542 U.S. at 519. Instead, what
mattered was the fact that “detention to prevent a combatant’s return to the battlefield is a
fundamental incident of waging war.” Id. So it is with signals intelligence as well. In
authorizing the President to use “all necessary and appropriate force” against the parties
responsible for the September 11th attacks—particularly because Congress indicated that
it was for the President to “determine[]” who was responsible for the attacks—Congress
necessarily authorized him to use the means necessary to determine the identity, location,
and strength of the enemy. Other Presidents, including Woodrow Wilson and Franklin
Roosevelt, have interpreted general force authorization resolutions that did not
specifically address surveillance to permit warrantless surveillance to intercept suspected
enemy communications. The language of the Force Resolution must be read against this
historical backdrop. Because signals intelligence aimed at intercepting enemy
communications has long been recognized as a fundamental incident of waging war, the
Force Resolution authorizes that activity regardless of whether the text of the resolution
uses the specific language of surveillance.
Review Process
30. On December 17, 2005, the President stated that “[t]he authorization [he]
gave the National Security Agency after September the 11th helped address
that problem in a way that is fully consistent with [his] constitutional
responsibilities and authorities.” He stated that “the activities [he]
authorized are reviewed approximately every 45 days. Each review is based
on a fresh intelligence assessment of terrorist threats to the continuity of our
government and the threat of catastrophic damage to our homeland. During
each assessment, previous activities under the authorization are reviewed.
The review includes approval by our nation’s top legal officials, including
the Attorney General and the Counsel to the President.”33 This appears to
explain the ongoing review of the program for compliance.
a. Please explain how the proposal for the program was reviewed before it
was authorized and initiated.
b. Who was included in this review prior to the program going into effect?
c. What was the time line of the discussions that took place?
d. When was the program authorized?
33 Supra note 2.
24
e. Was the program implemented in any capacity before receiving legal
approval?
Commentary on DoJ Response
The DoJ response is not adequate. We adversely judge the legal community has assented to illegal conduct, and they have failed to lawfully remove thsemlves from an illegal conspiracy to vialte the Constituonl.
The information does not adequately respond to the pre Sept 2001 montoring; or what was or was not decided in 2000.
We judge the program started well before Sept 2001. There are other illegal NSA actiites which fall outside this narrow definition, are well known, and consitently violate the law.
The President sought and received the advice of lawyers in the Department of
Justice and elsewhere before the Program was authorized and implemented. The
Program was first authorized and implemented in October 2001.
Comentary on Qeustion 31
The NSA review process is problematic. The Exeucive has already indicated he ignores standars he feels do not apply.
The reviews listed below are not lawful; nor are they within what Congress has lawulfly appropratied money. Funds have only been approproatied for conduct that is consistent with the FISA court.
The PResient has not been given the power to adjucicate on matters, nor replace the FISA court. The GAO and Congress need to find out which funds have been unlafylly expended to support this review.
Either:
Either way – the Exeucvie cannot supplant his reviews for that of the FISA court; nor can he argue he’s complying with the laws he ignores.
Question 31
31. With regard to the ongoing review process of the NSA’s activities that
includes thorough review by the Justice Department and NSA’s top legal
officials, including NSA’s general counsel and inspector general, please
explain this review process, what each review constitutes, and how reviews
were conducted when new individuals assumed positions previously held by
others who already had been consulted. What is the process for
reauthorizing the program?
Commentary on DoJ Response
Whether a Flag Officer does ot does not say something is irrelevant. The same joint staff which has commited war crimes in Iraq is no lying about what was or wasn’t done over the NSA. The Joint Staff has commited war crimes.
Relying on DoJ’s legal assetionsn – that the NSA activities are relatd to the use of force – we can reasonably infer those assertiosn to mean one thing: The Joint Staff knows full well that military forces are being unawlflyly used against civilian populations in violation of the Geneva Convenetions.
Whether the NSA activity is over seen or not is irrelevant. The law requires the “oversight” to go to one adjuciator: The FISA court. Congress did not appropate funds to have separate reporting channels, or indpendnet rivew. Rather, the only body which can effectively oversee the program – in terms of legal rvies – is the court.
That the reviews are occurring in “other departments” is not reassuring; rather, this merely means that other departments – not just the NSA and DoD –are equally delude as to what is or is not in the 4th Amendment, and the FISA.
That the NSA lawyers may or may not be involved is irrelevant. The law requires these issues to be brought before the FISA court. This was not done.
Whether th erview is or is not cursory is meanginless: The point is that the DoJ and NSA lawyers are not independneet of the Execuvie as our separation fo powers requires.
It is irrelavnt that there is an “oversight program”. Whether there is or is not a meeting every 45 day is meaingless. This simply means that personnel have agreed to vioatle the law. This is a conspiracy.
Wheter there is or is not a review of the program means nothing. The FISA court has to be involved. It is pure speculation whether or not something is or is not effective; this is a matter outside the issue of the law.
Rather, Congress needs to be involved to understand what is or is not being done.
The assertions that the programs do or do not protect cilil libeties are meanignles. If you are engaging in warrantless survilalnce – and doing so in a manner that does not fall within the FISA warrant excpeiotn s—then you are violating the law.
It doesn’t matter whethere people do or do not know their civil liberties rare violationed; rather, the issue is that you know you’re voilting the law, but continue to do so in secfet on the assumption that you are not discovered. That is not honorable; it is a betrayal of the American citizen’s trust. You abused your power.
You may lawfully have your powers revoked. Your conduct shows you wish to wage illegal war against American civlians. Americans may lawfully violate the same laws you are vilating: Find other excuses to find exceptions to the laws and similarly take action against people so long as they don’t find out about it.
Is that what you want? Do you want th eAmericna people to violate your rights “so long as you don’t find out about it”? If that is what you wan t—continue with your non-sense; otherwise, retrat any assertoint gthat the NSA unalwfyul conduct is rlated to combat or combat support. If you refuse to revoke your statmenets and distance yourselves, then you are formally declaring that all NSA acitiy – however illegal – has only one objective; To illegally use mitlary force against civlians.
That is a war crime, a vialtiho of th Geneva Conentoins, at odds with yoru aoth, and contrary to everything you have ben trained in the 5100.77 program.
Clearly, you cannot be trusted to have access to powerful weapons, or powerful tools to vilate rights. You should lawfully be dnied access and any trust to continue to be near any of thje NSA facilties, nor have the ower to review any of the NSA products.
The only way to do this is to lawfully revoke your powers. You can either resign, be removed form office, or we can change the Consttuton to prevent this from happening again.
The botoom line is that you have abused your power, vilated rights, berayed others trusts,, and simply violated the laws that you well knew were in place.
DoJ response
General Hayden has stated that the Terrorist Surveillance Program is “overseen
by the most intense oversight regime in the history of the National Security Agency,” see
Remarks by General Michael V. Hayden to the National Press Club, available at
http://www.dni.gov/release_letter_012306.html, and is subject to extensive review in
other departments as well. The oversight program includes review by lawyers at the
Department of Justice and by the NSA’s Office of General Counsel and Office of
Inspector General. In addition, with the participation of the Office of the Director of
National Intelligence and the Department of Justice, the Program is reviewed every 45
days and the President decides whether to reauthorize it. This review includes an
evaluation of the Terrorist Surveillance Program’s effectiveness, a thorough assessment
of the current threat to the United States posed by al Qaeda, and assurances that
safeguards continue to protect civil liberties.
Summary of Question 22 – 31
DoJ has fatally asserted that the illegal NSA activityis direct against Aemrican cviilans related to combat support. This is a war crime and a violationfo the Geneva conventions. DoJ must immediately distance itself from these outragsous tatements; or they will send a clear signal that a state of war exists between the Federal Government and the American people.
If the white House counsel and DoJ staff attorneys continue to assert the illegal NSA activity is for combat support., DoJ has many questions they need to answer related to the laws of war; what they lan to do to Americans who lawfully ignore the laws which the FEddarl Government ignores; and what foundation they relyon when they ignore the US Constitution.
Those Aemricans they unalwflly detain cannot be legally torutrted, or mistrated; this conduct would be at odds with the 1775 precedent when Congress stated that all prisoners captured on Biritsh ships would be treated humanely as prisoners.
Relying on DoJ guidance, are we to believe if the FEdearl Government detains Americans for violating the laws which NSA violates, then American citizens may lawfully detain NSA contractors who support these illegal activities? Is this what DoJ is advocating; if not, then DoJ needs to immediately revoke and adjust what it is saying.
Gorelicks statements in no way support DOJ’s position.
The AUMF is not relevant, as evidenced by Gonzalez’s 2004 changes to FISA.
It remains to be undersrtood. Howmuch money the President has unlawfully expended outside what Congrses intended by conducting the NSA reviews. Congress did not intende for these reviews to repalace the FISA court.
Overview
Update will include: Information/analysis
related to the NSA, and other information
in ligth of what we know after the NYT revelatoins
of the White House/NSA illegal activtry,
which violates the Constition; and forms
the basis to bring AUMJ Article 15 Charges
against military personnel inside NSA and the Joint Staff;
and impeachment againt the President for
violations of his oath of office.
A. Comentary on House Judicary question
B. Commantary on DoJ response
======================
===========================
Question 31
Commentary on Question: The FISA judges are well awrae of the illegal actdivites; but they do not appear to have all the ifnration about the “toerht things.” Self-eviently, the FISA court objected to the activity by refusing to provide warrants
A court does not “object” – that it what the SExecutive does; the court adjudicates. Get that through your think skulls, you idiots in DoJ.
The issue is: “how did the court respond when the Aministration violated the law” – answer: They have not been given the full picture of what is going on.
Whether a FISA court does or does not respond is irrelevant: The FISA court already issued an order compelling the Exeucive to do sometihgn – and th eExeucive did more than ignored the court order, it simply kept doing what was both illegal, and not conisten with what the FISA court adjudicated.
32. To what extent were FISA judges informed of the program? Did FISA
judges who were informed about the program object to it? In what manner
were objections raised? How did the Administration respond to the
objections, if they were raised? If a Member had problems with the
program, what were they legally permitted to do?
Commentary on the Rseponse
DoJ knows it has a problem. The DoJ assurances are wrothelss. Whether the FISA court was or was no informed is meanigiesl. The issue is why did the White House violate the law despite the law, and despite the court order do the contrary? No answer form DoJ.
It is not credible that the White House and DoJ accurately or fully informed FISA; nor that the information was relevant; nor that the White House would take the time to ‘fully inform” the FISA court about soemting that is outside the FISA court: Unlawful reviews of activites at odds wth FISA.
We judge the communications with FISA were misleading; were knowingly at odds with FISA requirements; and that the FISA court has not been fully informed of the full range of unlawfula citity; and the White Hosue has asserted judicial power by self-adjudicating whether something is or is not relevant. That is not within the power of the White House or Executive to assert ot self-detremine; it is subject to reiew by the other two branches of government. The ragne of illegal actiiteis has meaningless oversight.
DoJ Stonewall because they know they did a bad thing
Because communications with and the proceedings of the Foreign Intelligence
Surveillance Court are classified and confidential, we cannot divulge the content of any
discussions with the Foreign Intelligence Surveillance Court. We assure you, however,
that the Department keeps the Foreign Intelligence Surveillance Court fully informed
regarding information that is relevant to the FISA process.
Commentary on Question: the Gonzalez 6 Feb 2006 hearing before Senate Judiciary well contrasts with the responses.
The reviews “of this program” should have been done under the umbrella of FISA; and also in Congress before they started. This amounts to a self-certification of illegal activity.
Notice the liberal use of “belief” – they believe they are not violating the law; they believe they can violate the law; they believe that the law does or does not apply; they believe that the conduct is OK. This “belief” is not something the Eecutive ws granted the power to assert as the basis to self-approve a warrantless activity; rather “belief” has to be basedon the evidence, and the “belief” has to be warranted – something the Court, not the Executive has the power to condluce basedon probale , not simply believe out of convenience.
33. Did any of the individuals involved in the pre-program review express
concern or refuse to sign-off on the program?
a. On January 9, 2006, Newsweek published a story on the development of
the program. The article claims that “On one day in the spring of 2004,
White House chief of staff Andy Card and the then White House Counsel
25
Alberto Gonzales made a bedside visit to John Ashcroft, attorney general
at the time, who was stricken with a rare and painful pancreatic disease,
to try—without success—to get him a reverse his deputy, Acting Attorney
General James Comey, who was balking at the warrantless
eavesdropping.”34 Is this accurate?
b. On January 17, 2006, the New York Times reported that FBI officials
repeatedly complained about the NSA “eavesdropping program” and
believed that it was intruding upon the rights of everyday law-abiding
U.S. citizens.35 Are there documented complaints by FBI officials
challenging the legality of this program at the time of its inception or
throughout its activity?
c. The Times article claimed that Director Mueller also raised concerns
about the legal rationale of the NSA program. Is this claim accurate and,
if so, were Director Mueller’s concerns addressed to his satisfaction?
Commentary on DoJ response
We judge the failure to deny the 17 Jan 2006 NYT report is admissible; and that the concerns were never resolved; and that the FBI officials who well know what has happened have been blacklisted, likely had their performance reports shredded under bogus charges.
The statements are not priviledged, but as with the Nixon casse and the taples subject to presentment before the court. The Preisdent may not claim that the communications are not discoverable. Gonzelz already said on 6 Feb 2006 that he would have no objection if the people involved were interviewed.
DoJ has shows they are not serious about having an open debate about the meetings between Gonzalez and Ashcroft.
DoJ Stonewall
It would be inappropriate for us to disclose any confidential and privileged
internal deliberations of the Executive Branch.
Commentary on Quesiton:
Question
34. The President in his December 17, 2005 radio address, also pointed out that
the leadership and the Intelligence Committee chairs and ranking members
“have been briefed more than a dozen times on this authorization and the
activities conducted under it.”36 Please explain which Members of Congress
were consulted, whether any expressed concern, and how those concerns
were addressed. In addition, please explain how any consultations were
conducted when new individuals assumed positions previously held by
others who already had been consulted.
Commentary on DoJ response
DoJ asserts the law was complied with without any basis to believe the requirement was satisfied. DCMembers of Congress who received the briefing hold the standard was not met.
It is irrelevant that Congress did or did not stop something; the sisue is what is the law, and how many programs are in violation fo the law. Congress has no power to ratify or adjudicate o nwhether a criminal matter is or is not a crime.
DoJ Response
The Administration provided appropriate briefings about the Terrorist
Surveillance Program to the Chairs and Ranking Members of the House and Senate
Intelligence Committees and to leaders of both parties in the House and Senate. When a
new Member of Congress assumed one of those positions, he or she then was given a
similar briefing. As for whether any Members of Congress expressed concerns, the
Attorney General testified before the Senate that, to his knowledge, of those Members of
Congress who were briefed, “no one has asserted the program should be stopped.”
Commentary on Question
Whether there was or was not something done is irrevlant. The issue is that the White house has ignored the laws; its too late to explain that the reporting of that violation did or did not meet the standards they were already ignoring.
That Congress doesn’t know about the violations means that President violated his reporting requirement on unlawful actviites, that is a second violation.
Question
35. Please explain what efforts the Administration has made to keep Congress
informed about the terrorist surveillance program and what, if any, efforts
34 Evan Thomas and Daniel Klaidman, Full Speed Ahead, After 9/11, Bush and Cheney Pressed for More
Power and Got It Now, Predictably, the Questions Begin. Behind the NSA Spying Furor,
http://www.msnbc.msn.com/id/10663996/site/newsweek (last visited February 2, 2006).
35 See Lowell Bergman, Eric Lichtblau, Scott Shane, Don Van Natta Jr.; William K. Rashbaum,
contributor, Domestic Surveillance: The Program; Spy Agency Data after Sept. 11 led F.B.I. to Dead Ends,
N.Y. TIMES, Jan. 17, 2006, at A1.
36 Supra note. 2
26
the President plans to undertake to ensure the Congress is fully informed
about the program.
Comment on response
ALERT ALERT White House is keeping Congress and Judical Branches chasing eachother – they fail to follow rules; then make determination that new rules do or do not meet the standard. This is non-sense, and outside FISA. Essentially, the Executive crated new rules, then self-determined that those rules were or were not satsifed. That is the same as a dictator exercising legislative and judicial power. The net reulst is he asserted powers not delegated; then violated the Constitution.
We judge assurance that conduct is or is not “appropriate” are meaningless. The arrangement are of no meaning – they do not meet the FISA requirements.
Congress was not told that FISA or the FISA court was getting reviewed. Congress was not informed that the FISA was left out of the “other reviews”.
Notice DoJ fatally admits: “is making simlar arrangements” – meaning that the briefings were never conducted as required by statute. If the statute was met, they would talk about this in the past-tense.
DoJ response
The Administration has observed and continues to observe appropriate
arrangements. The arrangements have involved the leadership of the two Houses and
their respective Intelligence Committees. In addition, the Administration has already
briefed the new subcommittee of the Senate Select Committee on Intelligence created to
oversee the Terrorist Surveillance Program and is making similar arrangements with
respect to the House Permanent Select Committee on Intelligence.
Commentary on Question
Thjis question is a red herring. The issue isn’t whether some or many are infored; the issue is whether the briefings meet the reporting greuqirement; whether the information is sufficient; and whether the disclosures are truthful. We have no information about the many other NSA actiites that appear to violate the law.
Question
36. 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.
Commenatry on DoJ response
Titel 50 requires the PReident to notify congress of illegal programs. This was not doine. Fully informing means letting Congress know what is being done to legalize the acitity. The President did the opposite: Assert the illegal activity would continue. Whether Congress dor or does not review a program has no relationship to whether the SExeucive is or is not following the law, either in practice or in review
DoJ picking and choosing
The briefings of the leadership of both Houses and of the Intelligence Committees
were entirely consistent with governing law when dealing with exceptionally sensitive
intelligence matters. The National Security Act of 1947 contemplates that the
Intelligence Committees of both Houses will be appropriately notified of intelligence
programs, and the Act specifically contemplates more limited disclosure in the case of
exceptionally sensitive matters. Title 50 of the U.S. Code provides that the Director of
National Intelligence and the heads of all departments, agencies, and other entities of the
Government involved in intelligence activities shall keep the Intelligence Committees
fully and currently informed of intelligence activities “[t]o the extent consistent with due
regard for the protection from unauthorized disclosure of classified information relating
to sensitive intelligence sources and methods or other exceptionally sensitive matters.”
50 U.S.C. §§ 413a(a), 413b(b). It has long been the practice of both Democratic and
Republican administrations to inform the Chair and Ranking Members of the Intelligence
Committees about exceptionally sensitive matters. The Congressional Research Service
has acknowledged that the leaders of the Intelligence Committees “over time have
accepted the executive branch practice of limiting notification of intelligence activities in
some cases to either the Gang of Eight, or to the chairmen and ranking members of the
intelligence committees.” See Alfred Cumming, Statutory Procedures Under Which
Congress is to be Informed of U.S. Intelligence Activities, Including Covert Actions,
Congressional Research Service Memorandum at 10 (Jan. 18, 2006).
Commaentary on DoJ Response
The conclusion does not follow. DoJ has failed to show that the program it outside FISA; or that the speculate risk factors are relevenat – FISA has been the exlusive means by which the conduct is to be reujlagate.
It is irrelevant what the Exeucige asserts. It is circular to say that te unlawful activity is “important” but not subject to review: How isone to now whether the funds expended for this activity are apporpately expended? NSA and DoJ cannot answer this.
It is a ruse to refer to the “oepratonal details” – on the surface, we already know that the activities violate the alw. How they violate the law doesn’t matter. This would have us argue over the color of the getaway vehicle; all the while we know the burglar stole the jewels.
DoJ Irrelevancy:
In view of the
extraordinarily sensitive nature of this intelligence activity, broader dissemination of the
operational details of the Program risked compromising it.
Commentary On Question:
37. On December 20, 2005, the St. Petersburg Times claimed that former Senator
Bob Graham, who chaired the Senate Intelligence Committee at the time the
Committee was briefed about the program by Vice President Cheney, said,
“We were not told that there was not going to be a warrant secured and
were not told that this was going to change the standard for wiretapping of
U.S. citizens.” 37
37 Above the Law?, ST. PETERSBURG TIMES, Dec. 20, 2005, at Al4.
27
a. How much detail was disclosed to the Intelligence Committee regarding
the NSA program?
b. Was the level of detail disclosed consistent with what was required by law
and consistent with disclosures regarding classified other program?
c. Did any Members of Congress ask for additional details?
d. What are the legal requirements or precedents that stipulate the type of
information to be disclosed or withheld?
Commaentary on DoJ Response
We judge the denial is meainigless. There is no basis to believe DoJ. Rather, it is more likely the opposite is true: That the White House is doing exactly what the question askes: Changing the standard for illegal ctigity. The shifting words – belief, probable cause, reasonable suspicion, or whateer – is not consitent with FISA. That’s the same as “chging the standard”.
Not only was this change outside the law – illegal – but it was done outside the court – a falure to assent to the Constitutoin; and an illegal assertion of Presidental power.
That DoJ says the actvities are “narrow” is circular – by their own definition, the program is narrow, but makes no mention of the other programs that are also in contravention to the alw.
ALERT ALERT: Adverse judgement spermit us to take information form Gunantamo, and condluce what is or is not being done -- by way of satnadrs comlance, enorcemet, or disregard -- in re NSA and the unlawful activity .
DoJ fails to show that the probable cause standard exists, has been used, or is a benchmark that has been followed. Moreover, ther is no basis to believe that the review – of whether something does or does not require a warrant, or whether there is or is not problabe cause for a warrant – is consistent with what is lawfully required: A court review. Rather, the President is more likely ignoring boththe law, and the loose definition of that standard; and there is no reason to believe he’s following the looser standard. This was a problem in Abu Ghraib and Guantanamo – and no reasonable person should divorce th pattern of “selective interpration of rules” as we aw with the Abu GHraib photos; and not question whether the same conduct is occurring in re the NSA activity.
DoJ Non-sense
To begin with, the Terrorist Surveillance Program does not “change the standard
for wiretapping of U.S. citizens.” The Program is an exceedingly narrow one, that targets
for interception only those communications where one party is outside the United States
and there is probable cause to believe that at least one party is a member or agent of al
Qaeda or an affiliated terrorist organization.
The Vice President of the United States has publicly stated that he personally
conducted those briefings and provided a very detailed account of the Program. Senator
Pat Roberts, the Chairman of the Senate Select Committee on Intelligence, stated that
those who were briefed were given repeated opportunities to ask questions and express
concerns until they had received all the information they wished See Meet the Press,
transcript for Feb. 12, 2006 (available at http://www.msnbc.msn.com/id/11272634/).
Certainly, the fact that no court order would be obtained before intercepting
communications under the Terrorist Surveillance Program clearly was disclosed to
members who attended these briefings.
Commentary on question
38. The January 17, 2006 New York Times article also quoted an anonymous
FBI agent who allegedly said that the program uncovered no active al Qaeda
networks planning attacks inside the U.S.. Does the President conduct
ongoing evaluations of the effectiveness of this program?38
Commentary on DoJ Response
Note there is a “45 day” review number. Small problem, as with the UAE and the FISA, the President ignored tehse requirements. Why should we believe that this “special number” got any attention or was followed?
There are no sanctions the President gives himself if he iovlates this 45-day number. This 45-day review number is meaningless, not consistent with the FISA requirement, and in no way complies with what Congress intended.
That there may or may not be a 45 day requirement is meaningless and provides no assurances about the other unlawful activities.
Wheer the “urpose of the reviews’ is or is not satisfied is irrelevant. FISA reuqieres the court to review the matter. There are no tstanards to adjudicate whether “non official riews” are or are not adequately manged. This review is outside the statute, and Congress provided no funds to support his review.
ALERT ALERT ALERT: Presidential dilemma: either
Important: Which funds is the PReisdent using to support this non-FISA-related review activity? It appears as though founds have been expended that are outside what congress intended; this would be a violation of Article 1 Sectoin 9 of the US Constitution. It remains to be seen which NSA program had funding raided to support thes program rviews; if there were no funds unlawfully expended – as what some might assert in the vacuum of evidence – then we judge the PReident is not actually ding the reviews. This conclusion is confirmed by his assertion that he didn’t know about the UAE port deal.
Given there is no formal Congressional appriation, it is not clear what basis Hayden is saying the program is or is not achieving which goal; at the ame time, given that they’ve ignored the FISA requirements, it’s reaonble to conclude they’re ignoring criteria that are not consistent with success, as is the case in Iraq. How many power plans got blown up today?
The inbality to discuss “program accomplishments’ sound like the same non-sense we heard over Katrina and the Iraq – hay, we going to wait another three years of stonewalling on NSA=Iraq-Katrina?
Failure to publicly discuss “acocomlishments” may adversely be jduged to be “we have nothing.” Keep in mind the Iraqis are discussing “classified AlQuead operations” – whereby supposedly 471 were “almost signed off.” Why is there not a similar willingness to be open about US successes? Withotu information, we judge the successes are zero; and that the program funds used for this program are unlawfully being expended in contravention to Article 1 Section 9.
“Success” in the minds of DoD is committing war crimes in Iraq; why is the result ifor the US anything other than that? No credible explanation from DoD.
The same “measures of success” where also used in Gutrananmo, but we now know the detainees were not connected to “succewss” but failure: Vioaltions of the law an dUS hypocrisy. Flag Offices can lie. These flag officers are war criminals: They know ther was no WMD in Iraq; so why is it anyting for them to lie about what is or is not an “excuse” to violate more laws? They have no credibility. They should be locked up and put before a war crimes tribunal. They are Nazis.
Keep in mind what th fascist US DoD Flag Offices said about the Guantanamo detainees: Despite them having no connection to anyting – and picked up on the basis of bribes paid to poor Pakistani sheep herders – the DoD goons claimed they were well connected to terrosim. This is a total fabrication, as are the lies from Hayden. He is delusional and should not be believed. It is our view that this entire crew is doing the same as they did with Guantanamo and the Iraq invasion: Making up non-sense to justify being held accountable for arrogance and hypocrisy.
How does someone get o the “watch list” in the US: It appears if someone has a gripe, as they did in Pakistan, anyone could be targeted on the basis of “belief.” That’s a police state. Who’s watching the goons in DoJ who like talk about operation camel toe?
DoJ Non-sense:
As discussed in above in the response to Question 31, the President has required
that the Terrorist Surveillance Program be reviewed approximately every 45 days. The
purpose of those reviews is to ensure that the Program continues to remain necessary and
effective in helping to safeguard the Nation against another terrorist attack. The
Department is confident that the Program is helping to achieve that goal. Although we
cannot fully address the Program’s accomplishments without revealing classified and
sensitive operational details, the statements of General Hayden and Director Mueller at
the February 2d Worldwide Threat Briefing are illustrative. General Hayden stated that
“the program has been successful; . . . we have learned information from this program
that would not otherwise have been available” and that “[t]his information has helped
detect and prevent terrorist attacks in the United States and abroad.” Director Muller
stated that “leads from that program have been valuable in identifying would-be terrorists
in the United States, individuals who were providing material support to terrorists.”
38 See supra note 29.
28
Comment: This question merely asks DoJ to reassert the narrow definition of the unlawful actifvity, and ask us to focse on a narrow scope of what the President is unalwfuly doing. This is nonsense-.
The Surveillance Program
39. Please explain the exact scope of the terrorist surveillance program
described by the President. Specifically, please explain whether the
program is designed to intercept only international communications or
whether it is also designed to intercept domestic communications.
a. What is the distinction?
b. Also, please specifically describe the type of individual targeted by the
program. In doing so, please explain whether the program is targeted
specifically at the surveillance of individuals affiliated with al Qaeda and
related terrorist organizations or whether it is broader in scope.
Commentary:
Ntoice DoJ is shfigint between belief, probable cause, and reasonbleness. They’re just throwing around words, and they cannot be credibly linked with a credible oversight system, as is the problem with the Guantnanamo Kangaroo Courts.
Note: Other unlawful programs – outside this very narrow definition -- do illegally target domestic-to-domestic calls.
DoJ Nonsense
The Terrorist Surveillance Program targets for interception only those
communications where one party is outside of the United States and there is probable
cause to believe that at least one party to the communication is a member or agent of al
Qaeda or an affiliated terrorist organization. The Program does not target for interception
wholly domestic communications.
40. On December 16, 2005, the New York Times claimed that President Bush
“secretly authorized the National Security Agency to eavesdrop on
Americans and others inside the United States to search for evidence of
terrorist activity without court-approved warrants ordinarily required for
domestic spying, according to government officials.” 39
a. Did President Bush authorize this program to search for evidence of
terrorist activity or was there a more narrow purpose for this
surveillance?
b. If the purpose was more narrow, please describe that purpose.
DoJ Non-sense
The narrow purpose of the Terrorist Surveillance Program is to create an earlywarning
system aimed at detecting and preventing another catastrophic al Qaeda attack
on the United States. To the extent that your question about using the Program “to search
for evidence” seeks to determine whether the Program is designed for conventional law
enforcement purposes, that is not the purpose of the Program. The purpose of the
Terrorist Surveillance Program is not to bring criminals to justice.
Commentary: This question takes the White House positon on the nature of the activity, and says, “We agree with you rnarow definition – so let’s ask a question about that narrow definition” – the way the question is worded, DoJ has to affirm. This question and response provide us nothing of value; other than a masure of whether the White House, DoJ, and th RNC are in the same corner cell.
41. Has surveillance conducted under this program been of communications
between parties, all of which were known to be located within the United
States?
Commentary: Noticce DoJ whines, “Probable cause ot believe” without a FISA court ruling that that is the case. Rather, DoJ is saying, “Do we in the Eecutive branch believe something – and can we make an argumtn to justify what w ewant to do? “ that’s a vilation fo the 4th Amendment, and it doesn’t matter what the signing statement might have been. IT’s called illegal.
hines:
As we have explained above, the Terrorist Surveillance Program targets for
interception only those communications where one party is outside of the United States
39 James Risen and Eric Lichtblau, Barclay Walsh, contributor, Bush Lets U.S. Spy on Callers Without
Courts, N.Y. TIMES, Dec. 16, 2005, at A1.
29
and there is probable cause to believe that at least one party to the communication is a
member or agent of al Qaeda or an affiliated terrorist organization. The Program does
not target for interception wholly domestic communications.
Discussion: This question is a stupid question. First, the question asserts that we “just know” that someone is ALqueda, which begs the question: “How do we know?” If they are “known alqueda”then you don’t need to listen to their phone calls – you already know.
But that’s where the question falls down: It speculates on a situation, and then it creates the illusion that the FISA court “isn’t up to it” – well, if the FISA court can’t do it, why should we beelvie the President can? No answer form DoJ.
42. If al Qaeda members purchase cell phones with U.S. domestic phone
numbers, but these members are located and are placing phone calls outside
the United States, would these calls be characterized as “domestic”? Does
the characterization change if the call is routed domestically?
Commentary: DoJ cannot explain why “the other program” are doing exactly the above on American citizens: “believing” that someone is with AlQueda, and then targeting them, regardless what what FISA court rejects.
DoJ Non-Sense
Because the question calls for the revelation of operational details about the
Program, we cannot discuss it in this setting.
43. The President explained that these intercepts were related to the war on
terrorism and that, “Before we intercept these communications, the
government must have information that establishes a clear link to these
terrorist networks.”40 Is this still true? What is the standard?
Commentary
The basis to review whether there is or is nto a link is one for the court to decide, not one for the Exeucivre to assert or freely choose.
The President’s examplatnion is non-sese, I gnores the law and court. The Presient does not have the power to make these decisions; rather, he has the ministerial requirement to do the opposite: Assent to the FISA court and get a warrant. The President opely stated that he didn’t follow the law, got not warrant. You don’t need an investigation. The facts are clear; Bush is a war criminal, and should be impeached an lawfully removed from office.
The NSA unlawful activity is much larger.
The actualu programs are collectively base dsdcirvedf as, “Thing swe want to do and not be accountable for.”
IT is more correct to say that the “war crimes” have been “narrowly defined” to be “jstifed.” That’s nonsense.
Your NSA and DoJ lawyers have gotten themselves into a trap. Don’t bother applying ot be a General Counsel; Your lawyers are not better than the Nazis who justified legal means to solve the “Jewish problem.” You are ins upport of a conspiracy to violate the laws of war and the US Constitution. You are evil.
The public can make adverse inferences: “Ther is a reaonble gorunds to believe that the DoJ lawyesr spend more time surfing the internet than reading the Constitution.”
Notice also that DoJ refers to FISA – but then ignores it later. Why the double standr on whether you do nor do not follow the law? The error is to assert that the standard – that you ignore – is what you are doing. The issue isn’t the standard, but what ou are doing. It is clear you are shffint the discussion from conduct, to whether or not you agree that the standard is or is not relevant. Thse are matters that FISA court already adjudicated – and you defied them. You are not a very good lawyer. Did you deliverabely ignore the Court, are are you just a stupid lawyer on your right?
DoJ non-sense
The President’s explanation remains entirely correct. As explained above, the
Terrorist Surveillance Program is narrowly tailored to target for interception only
communications where one party is outside the United States and there are reasonable
grounds to believe that at least one party is a member or agent of al Qaeda or an affiliated
terrorist organization. The “reasonable grounds to believe” standard is a “probable
cause” standard of proof, see Maryland v. Pringle, 540 U.S. 366, 371 (2003) (“We have
stated . . . that ‘[t]he substance of all the definitions of probable cause is a reasonable
ground for belief of guilt.’”), and “probable cause” is the standard employed under FISA
for approving applications for electronic surveillance.
44. Please explain in detail whether the terrorist surveillance program complies
with the requirements of the Fourth Amendment.
Cmmenatry: The answer is now. DoJ’s exuses below are absurd.
The basis for review is the FISA court, which DoJ ignored. Bad!
DoJ Nonsnse:
The Fourth Amendment prohibits “unreasonable searches and seizures” and
directs that “no Warrants shall issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be searched, and the persons or
things to be seized.” U.S. Const. amend. IV. The touchstone for review of government
action under the Fourth Amendment is whether the search is “reasonable.” See, e.g.,
Vernonia Sch. Dist. v. Acton, 515 U.S. 646, 653 (1995).
All of the federal courts of appeals to have addressed the issue have affirmed the
President’s inherent constitutional authority to collect foreign intelligence without a
warrant. See In re Sealed Case, 310 F.3d at 742. Properly understood, foreign
intelligence collection in general, and the Terrorist Surveillance Program in particular, fit
within the “special needs” exception to the warrant requirement of the Fourth
Amendment. Accordingly, the mere fact that no warrant is secured prior to the
surveillance at issue in the Terrorist Surveillance Program does not render the activities
40 Supra note 2.
30
unreasonable. Instead, reasonableness in this context must be assessed under a general
balancing approach, “‘by assessing, on the one hand, the degree to which it intrudes upon
an individual’s privacy and, on the other, the degree to which it is needed for the
promotion of legitimate governmental interests.’” United States v. Knights, 534 U.S.
112, 118-19 (2001) (quoting Wyoming v. Houghton, 526 U.S. 295, 300 (1999)). The
Terrorist Surveillance Program is reasonable because the Government’s interest,
defending the Nation from another foreign attack in time of armed conflict, outweighs the
individual privacy interests at stake, and because it seeks to intercept only
communications where one party is outside the United States and there is probable cause
to believe that at least one party is a member or agent of al Qaeda or an affiliated terrorist
organization.
Commentary
DoJ contradicts itself here, staing that the probable cause and warrant requirement are or are not required. But this is meaningless – the issue isn’t whether the warrant is or is not required but who decides.
The FISA court says it’s the court that decides that, not the President.
All the Exeucitve is doing is using non-snse to say:
That’s a load of non-sense.
Also, the caselaw that they’ve cited below deals with schools. This is meaingless. FISA is about the NSA – there is no FISA-like court for schools.
Notice what DoJ is doing:
The except that DoJ uses is irreenvat to to the NSA. The NSA is covered by FISA – period. IT doesn’t matter what courts may or may have not deciced about arrants – what’s required is that the FISA requirement are followed. No caselaw has trumped other caslaw by ignoring Congress. It doesn’t work that way. CONgress passes a lawy; and caselaw related to “other things” is . . .[wait for it] not releveant. This is a waste of time. DoJ, you are likely going ot ignore the FISA court. Oh, wait – you already did that, so you ignored them. See what they do – they violate the alw, upset the court, then use the “Courts reaction” to avoid doing what they require. Wow, kind of like how the US approaches the whole issue with Iraq: “Hay, we don’t like the alws, we’re going to do it anyway.” War criminals in the White House staff!
The cited cases are irrelevant to whether or not FISA does or does not apply. All DoJ is doing is picking language form cases that may or may not be consistent with what the White House has already violated: The law. Come on, DoJ – even stupid Americans can figure this out. Do you really believe you’re going to pull the wool over the sheep?
DoJ Non-sense
In “the criminal context,” the Fourth Amendment reasonableness requirement
“usually requires a showing of probable cause” and a warrant. Board of Educ. v. Earls,
536 U.S. 822, 828 (2002). The requirement of a warrant supported by probable cause,
however, is not universal. Rather, the Fourth Amendment’s “central requirement is one of
reasonableness,” and the rules the Court has developed to implement that requirement
“[s]ometimes . . . require warrants.” Illinois v. McArthur, 531 U.S. 326, 330 (2001); see
also, e.g., Earls, 536 U.S. at 828 (noting that the probable cause standard “is peculiarly
related to criminal investigations and may be unsuited to determining the reasonableness
of administrative searches where the Government seeks to prevent the development of
hazardous conditions”) (internal quotation marks omitted).
Commentary
“SPeicla needs” is irrelevant, FISA says you have to have a warrant, even in war time. You cited case is irrelevant. You wasted money looking that one up.
DoJ Non-sense
In particular, the Supreme Court repeatedly has made clear that in situations
involving “special needs” that go beyond a routine interest in law enforcement, the
warrant requirement is inapplicable. See Vernonia, 515 U.S. at 653 (there are
circumstances “‘when special needs, beyond the normal need for law enforcement, make
the warrant and probable-cause requirement impracticable’”) (quoting Griffin v.
Wisconsin, 483 U.S. 868, 873 (1987)); see also McArthur, 531 U.S. at 330 (“When faced
with special law enforcement needs, diminished expectations of privacy, minimal
intrusions, or the like, the Court has found that certain general, or individual,
circumstances may render a warrantless search or seizure reasonable.”).
Commentary:
Notice this: “It is difficult” – meaning they can’t do it – they can’t find a really god case that justifies what they’ve done” Vialte the law.
Hayk the burden of proof is on you to include in your arguemtn. It’s not our job to fix your argument. You fail. You ‘re losers. You’re morons. You want the public – that you’re abusing – to vtell you how to better violate their rights. Get real.
DoJ Whining:
It is difficult to
encapsulate in a nutshell all of the different circumstances the Court has found to qualify
as “special needs” justifying warrantless searches. But one application in which the Court
has found the warrant requirement inapplicable is in circumstances in which the
Government faces an increased need to be able to react swiftly and flexibly, or when
there are at stake interests in public safety beyond the interests in ordinary law
enforcement. One important factor in establishing “special needs” is whether the
Government is responding to an emergency that goes beyond the need for general crime
control. See In re Sealed Case, 310 F.3d at 745-46.
Commentary
The following conclusion does not follow: You can’ tpick a caselawf that is irrelvenat – then justify the results – all the while ignoring the standard by which the conduct is measured. Meaningless. How many times did the FISA court throw the lConstitutoin in your face and make you lick it? Clearly, not enough – your FBI agentse and DoJ counsel are swine. Start barking louder – your words aren’t making sense.
DoJ Logic Leaps
Thus, the Court has permitted warrantless searches of property of students in
public schools, see New Jersey v. T.L.O., 469 U.S. 325, 340 (1985) (noting that warrant
requirement would “unduly interfere with the maintenance of the swift and informal
disciplinary procedures needed in the schools”), to screen athletes and students involved
in extracurricular activities at public schools for drug use, see Vernonia, 515 U.S. at 654-
31
55; Earls, 536 U.S. at 829-38, to conduct drug testing of railroad personnel involved in
train accidents, see Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602, 634
(1989), and to search probationers’ homes, see Griffin, 483 U.S. 868. Many special
needs doctrine and related cases have upheld suspicionless searches or seizures. See, e.g.,
Illinois v. Lidster, 540 U.S. 419, 427 (2004) (implicitly relying on special needs doctrine
to uphold use of automobile checkpoint to obtain information about recent hit-and-run
accident); Earls, 536 U.S. at 829-38 (suspicionless drug testing of public school students
involved in extracurricular activities); Michigan Dep’t of State Police v. Sitz, 496 U.S.
444, 449-55 (1990) (road block to check all motorists for signs of drunken driving);
United States v. Martinez-Fuerte, 428 U.S. 543 (1976) (road block near the border to
check vehicles for illegal immigrants); cf. In re Sealed Case, 310 F.3d at 745-46 (noting
that suspicionless searches and seizures in one sense are a greater encroachment on
privacy than electronic surveillance under FISA because they are not based on any
particular suspicion, but “[o]n the other hand, wiretapping is a good deal more intrusive
than an automobile stop accompanied by questioning”).
Commetnary: The following “special needs” language is meaingless. There’s nothing in FISA that mentions this. DoJ is using irrelvan caselaw. Any 1st year law student could figure this out. Did you idiots actually take the bar and you really are licensed to practice law? Oh, my God – did they lower the bar that year, or is the ABA really just rubber stamping lawyers left and right. Wow! Homeless people can become lawyers – they can think straight: They know where to find food an survive. You didiots in DoJ – you have to have it fed to you, and you still drool all overyourselve. Wow, look at your laundry bills. Kind of sucks being in a place where you can only rely on non-sense.
DoJ Nons0sense
To fall within the “special needs” exception to the warrant requirement, the purpose of the search must be distinguishable from ordinary general crime control. See, e.g., Ferguson v. Charleston,
532 U.S. 67 (2001); City of Indianapolis v. Edmond, 531 U.S. 32, 41 (2000).
COmmetnary: DoJ fials to cite credible case law to justify why the FISA should be ignored; or why this other nonsense that may or may not be from an actual case should be regarded. DoJ fails to justify why the caselaw cited is relevant. You might as well pick random numbers. 12 US 12 – you like that number? How about this one 1 US 1? “I said so.” That’s not an argument.
Look at what DoJ is doing poingint to the heavens and saying, “Hay big scary thigns – assent to our non-sense.” That’s not how courts work,and you know that. Come on, start acting like lawyers, not poodles.
Whether the execugive does or does not “assert” or “maintain” something is meanigless. The issue is: Where’s the court? You’re ignoring the court. Can’t do that. Three branches, al checking, not blidly deferring to non-sense in DoJ General Counsel’s office.
Siting the Gorelick Case: that’s meaningless, and you know it. Gorelick actually undermines the DoJ position, but they keep using it.
It is true that NSA and law enforcement are different – that’s why the FISA court was crated. But you ignored that. You cannot celebreate the fact that something is “unique” but then ignore the unique mechanism to regulate that unique conduct. You’re not being consistent. Then again, you work for a moron in the White House who lives on inconsitency. Do you hate yourselves this much that you would go to work, alongn 495 every day, and then drive into that barn you call the Hoover building? You must be going nuts by now. Maybe you’ll keep your “DoJ expeirnce” off your resumme – if I see you’re from DoJ I’ll just think, “Nazi, Fasist, Poodle, lazy idiot who likes to violate the law.” HaY, I got it – you’re getting ready to go work for Enron or another piece of crap firm that is on Wall Street. Wow, you idiots in DoJ really have this game figure out.
Hello, Corporate Boards and SEC Blue Ribbon Committee: Guess who gets to review the qualifications of the attorneys during a GAAS-inducted audit – that’s short for a Generally Accepted Auditing Standards under SAS99, whereby wew would include the conduct and illegal behavior of your geneal cousel at DoJ in order to determine whether or not to increase audit schope that the firm where you work,. Which Board of Governors is going to want to hire you reckless fools – you’re a risk to the financial reporting system. SAS99 and DoJ General Counsel – wow, you aint seen nothing yet byway of audits an doversight. Elliot Spitzer and the Ghosts of New York State secuites office riding you into the ground. Are ou going to share an apartment in New York with you boyfriends?
DoJ Baselienss assertion
Foreign intelligence collection, especially in the midst of an armed conflict in
which the enemy has already launched catastrophic attacks within the United States, fits
squarely within the area of “special needs, beyond the normal need for law enforcement”
where the Fourth Amendment’s touchstone of reasonableness can be satisfied without
resort to a warrant. Vernonia, 515 U.S. at 653. The Executive Branch has long
maintained that collecting foreign intelligence is far removed from the ordinary criminal
law enforcement action to which the warrant requirement is particularly suited. See, e.g.,
Amending the Foreign Intelligence Surveillance Act: Hearings Before the House
Permanent Select Comm. on Intelligence,103d Cong. 2d Sess. 62, 63 (1994) (statement
of Deputy Attorney General Jamie S. Gorelick) (“[I]t is important to understand that the
rules and methodology for criminal searches are inconsistent with the collection of
foreign intelligence and would unduly frustrate the President in carrying out his foreign
intelligence responsibilities. . . . [W]e believe that the warrant clause of the Fourth
Amendment is inapplicable to such [foreign intelligence] searches.”); see also In re
Sealed Case, 310 F.3d 745.
Commentary
DoJ Non-sense
The object of foreign intelligence collection is securing
information necessary to protect the national security from the hostile designs of foreign
powers like al Qaeda and affiliated terrorist organizations, including the possibility of
another foreign attack on the United States. In foreign intelligence investigations,
moreover, the targets of surveillance often are agents of foreign powers, including
international terrorist groups, who may be specially trained in concealing their activities
and whose activities may be particularly difficult to detect. The Executive requires a
greater degree of flexibility in this field to respond with speed and absolute secrecy to the
ever-changing array of foreign threats faced by the Nation. Even in the domestic context,
the Supreme Court has recognized that there may be significant distinctions between
wiretapping for ordinary law enforcement purposes and domestic national security
surveillance. See United States v. United States District Court, 407 U.S. 297, 322 (1972)
(“Keith”) (explaining that “the focus of domestic [security] surveillance may be less
32
precise than that directed against more conventional types of crime” because often “the
emphasis of domestic intelligence gathering is on the prevention of unlawful activity or
the enhancement of the Government’s preparedness for some possible future crisis or
emergency”); see also United States v. Duggan, 743 F.2d 59, 72 (2d Cir. 1984) (reading
Keith to recognize that “the governmental interests presented in national security
investigations differ substantially from those presented in traditional criminal
investigations”).
Commentary
DoJ Non-sense
In particular, the Terrorist Surveillance Program is undertaken to prevent further
devastating attacks on our Nation, and it serves the highest government purpose through
means other than traditional law enforcement. The Program is designed to enable the
Government to act quickly and flexibly (and with secrecy) to find agents of al Qaeda and
its affiliates—international terrorist groups which have already demonstrated a capability
to infiltrate American communities without being detected—in time to disrupt future
terrorist attacks against the United States. As explained by the Foreign Intelligence
Surveillance Court of Review, the nature of the “emergency” posed by al Qaeda “takes
the matter out of the realm of ordinary crime control.” In re Sealed Case, 310 F.3d at
746. Thus, under the “special needs” doctrine, no warrant is required by the Fourth
Amendment for the Terrorist Surveillance Program.
Commentary
DoJ Non-sense
As the Supreme Court has emphasized repeatedly, “[t]he touchstone of the Fourth
Amendment is reasonableness, and the reasonableness of a search is determined by
assessing, on the one hand, the degree to which it intrudes upon an individual’s privacy
and, on the other, the degree to which it is needed for the promotion of legitimate
governmental interests.” Knights, 534 U.S. at 118-19 (quotation marks omitted); see also
Earls, 536 U.S. at 829. The Supreme Court has found a search reasonable when, under
the totality of the circumstances, the importance of the governmental interests outweighs
the nature and quality of the intrusion on the individual’s Fourth Amendment interests.
See Knights, 534 U.S. at 118-22. Under the standard balancing of interests analysis used
for gauging reasonableness, the Terrorist Surveillance Program is consistent with the
Fourth Amendment.
Commentary
FISA is neutral on whether something is or is not a private matter. The issue is the warrant. You didn’t get one. That’s a violation of the law.
Moreover, the pohne companies know this, and it’s their problem that they let the conduct occur. No wonder the phone companies are worried.
Katz case udnmermines DoJ’s argument. Go read the whole thing.
DOJ says “it is well recognized” – but fails to cite any case. Your argument fails. It irrelevant whether something does or does not “overcome” those interests in non-FISA/non-NSA issues. Your examples are irrelevant.
DoJ Non-sense
With respect to the individual privacy interests at stake, there can be no doubt
that, as a general matter, interception of telephone communications implicates a
significant privacy interest of the individual whose conversation is intercepted. The
Supreme Court has made clear at least since Katz v. United States, 389 U.S. 347 (1967),
that individuals have a substantial and constitutionally protected reasonable expectation
of privacy that their telephone conversations will not be subject to governmental
eavesdropping. Although the individual privacy interests at stake may be substantial, it is
well recognized that a variety of governmental interests—including routine law
enforcement and foreign-intelligence gathering—can overcome those interests.
Commentary
DoJ asserts a “compelling interst” but fails to explain why this trumps the law. This is absurd. The nonsense- about “big scary things” is a ruse. Ignore it. It’s just more DoJ non-sense.
DoJ Non-sense
On the other side of the scale here, the Government’s interest in implementing the
Terrorist Surveillance Program is the most compelling interest possible—securing the
Nation from foreign attack in the midst of an armed conflict.
Commentary: DoJ’s argument is circular: It would have us believe a falsehood on the back of non-sense. 9-11 occurree because of failure to follow rules; now they’re using that failure as an excuse to continue following the rules.
Also, the purose of government isn’t to simply defend – rather, it is there to preovent the abuse of power, and protect rights. Clearly, the Federal Government failed on all three counts. Article IV also states that the states shall have the power to defend themselves when the FEdaerl Government is not longer a Republican Form of Government and unafwlyuly violates rights, abuses, power, and uses non0-sense to impose a dictatorship.
A “government interest” – whatevef that might be – is at odds with the oath to the Constituotin that is currently ignored. Namely, it is a government tinterst to spew forth onn-sesne in order to avoid accoutnabilty and questions about vilations of the oath and laws of the land. There is no “government interest” that compels the leadership to do what is contrary to their oath: Protect and enforce the law.
DOJ REsponse
One attack already has
taken thousands of lives and placed the Nation in state of armed conflict. Defending the
33
Nation from attack is perhaps the most important function of the federal Government—
and one of the few express obligations of the federal Government enshrined in the
Constitution. See U.S. Const. art. IV, § 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 . . . .”) (emphasis added); The Prize Cases, 67 U.S. (2 Black) 635, 668
(1863) (“If war be made by invasion of a foreign nation, the President is not only
authorized but bound to resist force by force.”). As the Supreme Court has declared, “[i]t
is ‘obvious and unarguable’ that no governmental interest is more compelling than the
security of the Nation.” Haig v. Agee, 453 U.S. 280, 307 (1981).
Commentary
The Government’s ‘interest” in doing something – cannot use methods that violate the ministerial duties imposed on actors and agents. This can only be done with an act of Cognress; and through a Constituonal Amendment.
DoJ has not persuadd anyone that the activity is “reasonable” or that the full scope of the unlawful conduct is a trifle of intrusion. Rather, the available information suggest the opposite: That the intrusions are a violation of the law; anad they violate priviledges and immunites which the laws recognizes, and which the President asserts as a basis to not respond to question: Attorney Client privildge.
Why does the President violate this priviledge, but then assert that right as a basis not to cooperate witht eh states to protect thri Constitution? The President has no answer. He is a hypocrite.
DoJ Response
The Government’s overwhelming interest in detecting and thwarting further al
Qaeda attacks is easily sufficient to make reasonable the intrusion into privacy involved
in intercepting international communications where there is “a reasonable basis to
conclude that one party to the communication is a member of al Qaeda, affiliated with al
Qaeda, or a member of an organization affiliated with al Qaeda.” Press Briefing by
Attorney General Alberto Gonzales and General Michael Hayden, Principal Deputy
Director for National Intelligence, available at http://www.whitehouse.gov/news/
releases/2005/12/20051219-1.html (Dec. 19, 2005) (statement of Attorney General
Gonzales); cf. Edmond, 531 U.S. at 44 (noting that “the Fourth Amendment would almost
certainly permit an appropriately tailored roadblock set up to thwart an imminent terrorist
attack” because “[t]he exigencies created by th[at] scenario[] are far removed” from
ordinary law enforcement). The United States has already suffered one attack that killed
thousands, disrupted the Nation’s financial center for days, and successfully struck at the
command and control center for the Nation’s military. And the President has stated that
the Terrorist Surveillance Program is “critical” to our national security. Press Conference
of President Bush (Dec. 19, 2005). To this day, finding al Qaeda sleeper agents in the
United States remains one of the preeminent concerns of the war on terrorism. As the
President has explained, “[t]he terrorists want to strike America again, and they hope to
inflict even more damage than they did on September 11th.” Id.
Commentary
IT is speculate what someone may or may not do; what is clear is the law and what is or is not being followed. Using the governments’ “rationale” they could inflate their belief based on non-sense and ignore the Consttution. That is not reasonable nor is is lawful.
DoJ is using circular reasoning to justify why the unlawful activity is or is not reasonable. That is irrelevant. It is not reaonble to vioatle the law; the law is not a tradeoff when one believes it is “good to ignore,” especially when the “big nasay threat” has been manufactured, and 9-11 does not add up as a basis to assert that this “big nasty threat” is real. “Big ansty threat’ didn’t exist in Iraq – but you still violated thel aw to do that. Why should we believe that the “big nasty threat” in the US is any more real than the WMD? DoJ and the White House cannot defend their hypocrisy in re Guantnamo, Iraq, or the FISA violations.
Ther FISA requirement has a set number of day; so too does the President’s “oversight approach.” The pREient ignores the day-requrement in FISA; why should we believe this 45 day “threshold” is followed? There is nothing here to justify confidence this other standard and benchmark is given any grater deference than the law of the land or the Constituton. Rather, the standards are simply ignored – the standard is lcear – they are not the President’s to decide and ignore; rather, they are for Cognress to promulgate and for the president to follow. This President ignores the standards others impose on him; there’s no credible reason he’s going to follow stricter stanards he might or might not impose on himself. This argument and line of responses form DoJ is just non-sense.
DoJ Response
Of course, because the magnitude of the Government’s interest here depends in
part upon the threat posed by al Qaeda, it might be possible for the weight that interest
carries in the balance to change over time. It is thus significant for the reasonableness of
the Terrorist Surveillance Program that the President has established a system under
which he authorizes the surveillance only for a limited period, typically for 45 days. This
process of reauthorization ensures a periodic review to evaluate whether the threat from
al Qaeda remains sufficiently strong that the Government’s interest in protecting the
Nation and its citizens from foreign attack continues to outweigh the individual privacy
interests at stake.
Commentary: Notice what DoJ is doing in the following: It is arguing whether or not the 4th Amendment is or is not reasonable. That’s not something the DoJ can debate; nor is it something congress can assetn to; nor is it something the Esecutive can “reiew. Rather, this power of rreview of “balancing” was already inheren in the FISA; it is not the role of the Eeucitve to then “find a new balancing point” outside FISA – he does not have the power nor has anyone conferred any specific or implied power to compromise on a compromise.
DoJ’s response also asks us to evaluate a program – that tey will not discuss – on the baiss of a standard that they ignore – and refuses to look at the entire pattern of conduct that they will not commen ont. This is not acceptable. It is contrary to our system of laws. The Preisdent has violated the law and should be impeached.
DOJ’s assertion that a factor is or is not relevant is meaingless. The factors are already in the FISA: The absis for deciosn, what is to be done. This is ignored. It is irrelvean what the White House may or may not believe about the NSA intercept target – the forum and means to review the conduct is not for the President to self-regualte or review.
Moreover, DoJ’s assertion that there is a “probable cause” standard – is not one that is recognized by either the FISA Court; nor is is consitent with the much lower “bleive standard” – and if this “probable cause standard” – that DoJ says exist were real, why the reluctance to work with the FISA court? DoJ has no answer because its actual ‘basis for conduct” is not what they would have us ablieev – not the probable cause – but the ‘whatever we want to believe-standar” – that is a violation of the law.
It is a red herring what the Supreme Court did or did not say on “reasonableness” – the standard of conduct is measured by what FISA says; and what is in the Consttutoin; NO warrants shall issue but for probable cause. Reaonbneesnes, belief, and the Spureme Court are irrelveven when it comes to the epxlicity ministerial requirement on the Exeuctive to follow the law, assert the rule of law, an dmake sure his conduct is consistne with the Constitutonl The president has failed on all counts.
DoJ Response
Finally, as part of the balancing of interests to evaluate Fourth Amendment
reasonableness, it is significant that the Terrorist Surveillance Program is limited to
intercepting international communications where there is probable cause to believe that at
least one party to the communication is a member or agent of al Qaeda or an affiliated
terrorist organization. This factor is relevant because the Supreme Court has indicated
that in evaluating reasonableness, one should consider the “efficacy of [the] means for
34
addressing the problem.” Vernonia, 515 U.S. at 663; see also Earls, 536 U.S. at 834
(“Finally, this Court must consider the nature and immediacy of the government’s
concerns and the efficacy of the Policy in meeting them.”).
Commenary
The “intrusiveness” method is at odds with what is lawful. This is a selective reading of the caselaw and is absurd. The full Consttutoin is at odds with the twised language the DoJ has proffered as an excuse. They are fools to believe that we in the blogosohpere cannot figure this out.
DoJ Response
That consideration does not mean that reasonableness requires the “least intrusive” or most “narrowly tailored” means
for obtaining information. To the contrary, the Supreme Court has repeatedly rejected
such suggestions. See, e.g., Earls, 536 U.S. at 837 (“[T]his Court has repeatedly stated
that reasonableness under the Fourth Amendment does not require employing the least
intrusive means, because the logic of such elaborate less-restrictive-alternative arguments
could raise insuperable barriers to the exercise of virtually all search-and-seizure
powers.”) (internal quotation marks omitted); Vernonia, 515 U.S. at 663 (“We have
repeatedly refused to declare that only the ‘least intrusive’ search practicable can be
reasonable under the Fourth Amendment.”).
COmmentary
DoJ continues to banter about the non-sense red herring of “reaosnableness” – this is at odds with the FISA warrant requirement. The “reaonabnless” standr is only in situation where they are incident to arrest; there is an emergency. Law enforcement does not have the power to wander around into any facility on the “Belief” that something “might be” going on. They need a warrant. To argue otherwise is pure non-sense asking us to assent to the British Monarcy of pre-1776.
It is irrelevant what the program does or does not do – the issue is what is the full spectrum of conduct NSA engages in. The “reaonablely believed” standard is vague, not clear, and at odds with the reuqirmeent under FISA to meet the standards of the court; not something the President can decide using this boggly goop language. Come on, can’t you idiots do bette than this? This makes no snese and is at odds with our Constution. Do you enjoy being in rebellion?
DoJ response
Nevertheless, the Court has indicated that
some consideration of the efficacy of the search being implemented—that is, some
measure of fit between the search and the desired objective—is relevant to the
reasonableness analysis. The Terrorist Surveillance Program is targeted to intercept
international communications of persons reasonably believed to be members or agents of
al Qaeda or an affiliated terrorist organization, a limitation which further strongly
supports the reasonableness of the Program.
COmmenatry
DoJ asserts non-sense. DoJ ahs failed to jstify why – the standrds it is ignored – are somehow compatible with what is going on.
On the contrary, FISA explicity states that the warrant requirement exists.
The “special eneds” excuetion still must comply with the FISA-requirement of the specific day-windwo. Here we are in 2006, 5 years after 9-11, and this is well beyond the special needs window.
“ordinary lawf enforcement” is meaingless: FISA is unique to the NSA, and any reference to “ordinary law enforcement” is at odds with the clear requirements.
The Presient has no inherent authority to do antying. He must have that power delegated; he does not have the implied or explity power to violate the law nor violate the 4th Amemdent, not create new non-sesen to ‘jstufi” ignoring the law.
It is an overstataement that the conduct is or is not related to smeting else. The President has a clear requirement.
Visions of “armed attack” is more of the same non-sense Powell and Rice threw around over the WMD mushroom clouds.
Get real, you’re just using the “Big scary enemy” as an excuse to violate the law. You have no credibility. You’re morons and idiots; what’s worse your feet smell. Take a shower and then read the Constitution.
It is a crock of non0sense to say that the “corner” of the 4th Amendment is reaonbless; on the contrary the sisue is warrants – DoJ keeps shifting the forcuse form the unlawful montiirng without warrants – as required – to whether or not their vague belief is or is not reaonble.
Using the DoJ’s arumen tthen it is a reasonable believe that DoJ and the White House are part of an ongoing conspiracy to bring a dictatorship, ignore Article IV and simply talk about the constitution as they burn it. What a load of non-sense.
“reasonable” reasonable reasonable – what a load of non=sense. Why didn’t you mention it more and then really make us realize you’re idiots: 4th Amendment and FISA are about warrants and probable cause: You don’t quite get that do you? Well, fortunately, the states can issue proclamations for impeachment; and we can change the Constitution stripping DOj of independent power, and can require the Attorney General to report to a 4th Branch outside the Execuive, and introdude new reuirements that the Executive Departments have three leaders – one from each of the Congress, Execuive, and new branch.
That sonds pretty reasonbal.e Let’s hear your non-sense to justify why that “is not reaonble” – oh, you’re going to “rely on’ the Constitutoin – that you ignore _- to not do what is required; and stick with something that you do not use. That makes no sense – why are you suddenly concernd about “sticking with” something that you ignore and say isn’t good enough? That’s kind of a double standard on whether you do or do not follow the law. Kind of picking and choosing – today, maybe we believe something – tomrorr, mwy AlQueda is or is not riding on Camels. Tomrorrw, maybe you’ll make a new rule that you ignre.
Hey, you idiots. This is America – we have a COnstituotin. Something you took an other to preserve, protect, and defend – not explailn away with non-sense. You are idiots. How did you find your way along Pennsylvania Aven and get through the security doorways? Real buffoons like you in DoJ should belong in a padded cell. You like that? We can monitor you internet surfing. You like to update sites that have nothing to do with official DoJ duties? We know all about it – and we know that you believe you can work on nonse-sense and then have us belive you should get paid a lot of money. Hay, you’re lazy pices of garbage.
DoJ Response
In sum, the Terrorist Surveillance Program is consistent with the Fourth
Amendment because the warrant requirement does not apply in these circumstances,
which involve both “special needs” beyond the need for ordinary law enforcement and
the inherent authority of the President to conduct warrantless intelligence surveillance to
obtain foreign intelligence to protect our Nation from foreign armed attack. The
touchstone of the Fourth Amendment is reasonableness, and the Terrorist Surveillance
Program is certainly reasonable, particularly taking into account the nature of the threat
the Nation faces.
Question 48
This question mixes terms when there is an imminentce issue. If there is a risk that evidence cannot be safeguarded; or action can be taken to apprehend someone while in hot pursuit, then that is acceptable.
The problem with this argument – in applying it to the “justification for the unlawful activity” is that the US is making a circular argument.
In ordre to assert that there “has been a crime committed, or about to occur” the US would have to have people under surveillance. IF this is true, then you already know who they are, and the real issue is – if you think there is a criming going on, why are you monitoring them, instead of picking them up?
Rather, the real issue is the US has no evidence of a crime – but they’d rather monitor.
But this is circular.
Thus, it’s more likely that the people the US is watching are not necessarily linked with terrorism; but are simply caught up in the NSA fishnet.
It’s different to arrest someone, and violate their rights in order to gather information.
45. Throughout the Federal criminal code,41 the statutes authorize arrests
without warrants if there is “reasonable grounds to believe” that a crime has
been or is about to be committed. Does this a probable cause standard
translate to the NSA program? Is there case law to support this standard?
COMmenatary: The problem with the DoJ response is that it narrowly answers the question in terms of the program – and fails to offer us any assurance that “other programs” are not doing what is denied: Namely, domestic to domestic calls. Under the NSA compartmentalized programs, it is possible that there are other activities that are also illegal, but have been segregated so the NSA employees do not realize that they’re engaged in supporting an unlawful activity.
“reasonable grounds to believe” is not the same as the warrant requirement’ in the constitution. There has been no Constitutional Amendment.
DoJ Response:
As explained above, the Terrorist Surveillance Program targets for interception
only communications where one party is outside the United States and where there are
reasonable grounds to believe that at least one party to the communication is a member or
agent of al Qaeda or an affiliated terrorist organization. The “reasonable grounds to
believe” standard is a “probable cause” standard of proof. See Maryland v. Pringle, 540
U.S. 366, 371 (2003) (“We have stated . . . that ‘[t]he substance of all the definitions of
probable cause is a reasonable ground for belief of guilt.’”).
46. Please explain what efforts are currently underway with respect to the
terrorist surveillance program to ensure that the civil liberties and privacy
41 See, e.g., 18 U.S.C. § 3051.
35
of ordinary Americans are adequately protected and what additional efforts,
if any, the President is considering to effectively address these issues.
Commentary:
The prupose of the FISA court was to ensure there was a thorough review. The Executive now asserts that he can do this review. This has no merit.
DOJ Response
As explained above, the processes for approving particular instances of
surveillance under the Terrorist Surveillance Program, and for periodically reviewing the
Program as a whole, are careful and thorough. Surveillance decisions are made by
professional intelligence officers, who are experts on al Qaeda and its tactics (including
its use of communication systems). Relying on the best available intelligence and subject
to rigorous oversight, these officers, before ordering the interception of any international
communications, must determine whether there is probable cause to believe that at least
one of the parties to the communication is a member or agent of al Qaeda or an affiliated
terrorist organization. Procedures are in place to protect U.S. privacy rights, including
applicable procedures required by Executive Order 12333 and approved by the Attorney
General, that govern acquisition, retention, and dissemination of information relating to
U.S. persons.
In addition, the Terrorist Surveillance Program is reviewed and reauthorized at the
highest levels of Government approximately every 45 days, and this process is designed
to ensure that the Program will not be continued unless the al Qaeda threat to the United
States continues to justify use of the Program. In making a determination to reauthorize
the Program, the President relies on reviews undertaken by the Intelligence Community
and Department of Justice, a strategic assessment of the continuing importance of the
Program to the national security of the United States, and assurances that safeguards
continue to protect civil liberties.
47. Press reports have stated that the Justice Department has opened an
investigation of the leak of information regarding the highly classified NSA
program.42 Does the Department consider the unauthorized disclosure of
information about this program to be a leak of classified information? Has
the Department, as reported by the press, opened an investigation of the leak
of this information?
Commentary
The question shifts attention from the unlawful White Hosue conduct onto those Patriots who dared to reveal the violations of the US COnstitutoin and the 4th Amendment.
Regardless what may happen, the world now knows the White House is lying; and they are war criminals, along with their toady staff inside the DoJ General Counsel’s office. As evidence by their non-sense legal arguments, we should have no trouble linking the DoJ law clearks with some sort of crime: They knew what was going on, but failed to remove themselves from this conspiracy.
You can easily see how lazy the DoJ General counsel’s staff is by looking at the list of information they review that is unrelated to official business. Its on the IT logs. They like to surf on the internet for information unrelated to the laws. Strange, isn’t that why they’re there? Not this idiots – they like to surf for unlreated information. That’s not impressive. Small problem: Guess who has the intercepts of where the DoJ General Counsel’s office has been surfing? That’s right – the NSA and the overseas interceptors and birds in the sky. Stupid DoJ! We found you.
If the NSA employees were truly at risk, they would not have been identified nor tipped off. Rather, the DoJ’s problem is they are unable to determine how the NSA employees discussed the issues with the NYT without the NSA senior management knowing about the communcations; and in a way that the NSA did not detect. Even if the Q2 toads figure out which NSA employees can use equipment which the NSA cannot intercept, is that going to help the White House? Not really: The White House is the one that is violating the law.
DoJ Response
The Department of Justice has initiated an investigation to determine whether the
law was broken when the existence of the Terrorist Surveillance Program was leaked to
the news media. If it is determined, after a careful evaluation of all the evidence, that a
crime has been committed, then Department of Justice officials will have to decide
whether to bring appropriate criminal charges against those responsible. Consistent with
established Department of Justice practice, however, we cannot comment further on this
ongoing investigation.
42 See, e.g., Inquiry into leak of NSA spying program launched, CNN.com, Dec. 30, 2005,
http://www.cnn.com/2005/POLITICS/12/30/nsa.leak/index.html (last visited February 3, 2006); Dan
Eggan, Justice Dept. Investigating Leak of NSA Wiretapping – Probe Seeks Source of Classified Data,
WASHINGTON POST, Dec. 31, 2005, at A1.
36
48. The Washington Post reported that “Fewer than 10 U.S. citizens or residents
a year, according to an authoritative account, have aroused enough
suspicion during warrantless eavesdropping to justify interception of their
domestic calls, as well.”43 Are targets of the NSA surveillance program
“U.S. citizens and residents,” or do targets also include non-U.S. persons?
Are targets of this surveillance program those who have “aroused enough
suspicion” or are there other justifications for the interception? Do you
agree with the premise made by the Washington Post that this program
monitored domestic calls?
Commentary
DoJ narrowly definesn the scope of the illegal conduct to be those thigns that are Lawful; but what about the other illegal things? DoJ can’t answer that.
Also, note in the DoJ response they say that “at least one party is a member or agent” – if that’s true – that they know they are linked to AlQueda – which is doubtful – why are they bothing to monitor them; why aren’t they picking them up?
Surely, if you know enough about someone – to get their phone number – surely you now enough to be able to find these people. SO why are tyou bothering to monitor those you sare are “running around”. The numbers suggest that the Total number of AlQueda is overstated.
Rtaher, it’s more likely that there is no AlQueda – if you knew they were using phones – which they don’t, they use couriers – then what’s stopping you from legally detaining them:? You have no answer because you have no valid warrant.
Big Mystery: If you can’t get a warrant for phone calls, where are you getting the warrants for the domestic rendition and detention program.
Oh, you mean they’re already doing that in the “other” DHS program, that’s linked to the business interest and credit card pay off excuse. I see. That’s very interesting.
DoJ provides no basis for justifying why “believing” something is or is not connected to terrorism is well founded; and why this “belief” is not something that is outside the FISA court power to review.
Note DoJ calls it “the program” – implying that the “other programs” could very well be point to poit calls inside the US.
We are asked to believ that there are “procedures” in place to protect privacy rights – well, those procedures are calld warrants, but you’ve ignored those. Why should we believe that you’re following the procedures you’ve created to ignore the law?
It’s one thing to have procedures; quite another to follow them. Based on what the Presient has said about the Patriot act notifications to Congress – in that he will ignore reporgin requrements to Congress – why would we believe that you’re going to follow procedures, requirements, and other stanards? You’ve already ignored the FISA, and the Patriot Act – no reasonable person would believe that you’ll follow another set of procedures that could easily be wavived using another set of reviews.
KEY QUESTION: What is the process by which the “porgraM’ procedures are trumped as they trump the Constitutoin and FISA?
Citing an executive order over “privaty rights” is meanigless – executive orders do and have been kown to violate the law and privcy. That there is a rule or requirement does not mean that it is lawful, followed, or meaningful. Rather, the clear FISA requirements are ignored; it is reasonable to presume that other requirements are also ignored.
DoJ Response
The Terrorist Surveillance Program targets communications only when one party
is outside the United States and there is probable cause to believe that at least one party is
a member or agent of al Qaeda or an affiliated terrorist organization. Accordingly, it is
possible that the NSA has intercepted communications to which a U.S. person is a party.
As we have explained, however, the Program does not target communications that are
wholly domestic (i.e., those made from one point in the United States to another). In
addition, as mentioned above, procedures are in place to protect U.S. privacy rights,
including applicable procedures required by Executive Order 12333 and approved by the
Attorney General, that govern acquisition, retention, and dissemination of information
relating to U.S. persons.
49. This article also stated that “Computer-controlled systems collect and sift
basic information about hundreds of thousands of faxes, e-mails and
telephone calls into and out of the United States before selecting the ones for
scrutiny by human eyes and ears.” And that “Successive stages of filtering
grow more intrusive as artificial intelligence systems rank voice and data
traffic in order to likeliest interest to human analysts. But intelligence
officers, who test the computer judgments by listening initially to brief
fragments of conversation, “wash out” most of the leads within days or
weeks.”44 General Hayden, in an interview with Chris Wallace on February
5, 2006, indicated that this is not an accurate depiction of the NSA
surveillance program. Is this a data-mining program, as the Washington
Post article conveys, or is this a limited program “where NSA has already
established its reasons for being interested in that specific communication”?
Commentary: DoJ fatally admits something very important. Recall back to the Gonzalez hearing on 6 Feb 2006: He refused to comment on data mining. DoJ’s response says that the Program is not data minng; therefore, the data mining program – that is also likely unlawful – is another program outside what DoJ is talking about, but well within the scope of the NSA unlawful conduct.
Gonzaelz has also lied to the Sneate about “yptheticals.” It may be true that this program is not a drift net; but it is more likely than note there are drift nets that are part of other unlawful programs.
We judge, when taken as a whle the full range of NSA unawflu activities add up to meet this unlawful conduct: The NSA unlawful activity includes, but is not limited to a “drift net out there where we’re soaking up everyone’s communications.” This is what Echelon is.
DoJ Response
As General Hayden correctly indicated, the Terrorist Surveillance Program is not
a “data-mining” program. He stated that the Terrorist Surveillance Program is not a
“drift net out there where we’re soaking up everyone’s communications”; rather, under
the Terrorist Surveillance Program, NSA targets for interception “very specific
[international] communications” for which, in NSA’s professional judgment, there is
43 Barton Gellman, Dafna Linzer, and Carol D. Leoning, Surveillance Net Yields Few Suspects; NSA’s Hunt
for Terrorists Scrutinizes Thousands of Americans, but Most Are Later Cleared, WASHINGTON POST, Feb.
5, 2006, at A1.
44 Id.
37
probable cause to believe that one of the parties to the communication is a member or
agent of al Qaeda or an affiliated terrorist group—people “who want to kill Americans.”
See Remarks by General Michael V. Hayden to the National Press Club, available at
http://www.dni.gov/release_letter_012306.html.
50. On behalf of a group of organizations45 that requested, in a January 30,
2006 letter to Chairman Sensenbrenner and Ranking Member Conyers,
oversight of the NSA surveillance program, please respond to the following:
a. Is the NSA surveillance program a single program, which operates under
a single authorization? What is the scope and/or nature of the
program(s)?
b. What are the criteria and triggers for collection and/or analysis of
information? How do these criteria and triggers differ from those in
effect prior to September 11, 2001?
c. Were laws violated and, if so, who bears responsibility?
d. What information is obtained through this program? Is it shared with
other agencies? Once obtained, how is it used and/or stored, whether by
NSA or other agencies?
Commentary:
Notice the above ask questions related to the broad unlawful White Hosue conduct; while DoJ’s response is narrow.
It is not clear that the “operational details” of the activites are lawful; using the “we can’ talk about classified operations” is non-sense when it comes to matters of law.
Note the qualified response, indicating that the “other programs” are vioatilng us laws:
Communications are not targeted for interception under the
Program unless one party is outside the United States and there is probable cause to
believe that at least one party to the communication is a member or agent of al Qaeda or
an affiliated terrorist organization
Converly, it is reasonable to conclude that the other programs meet the oppiste standard:
Communications are targeted for interception in the other unlawful programs, regardless whether unless one party is outside the United States; and even if there is no probable cause to believe that at least one party to the communication might a member or agent of al Qaeda or an affiliated terrorist organization or a poltical opponent we believe might be linked to something we do not understand – which his a lot – and we do monitor politicians in New Mexico
Also notice that “the program” is sold not in terms of legality, but in the easy of oversight. This is at odds with the Constitutoin. It is there as a shield to be followed, not explained away because it is “inconvenient.” Rather, if DoJ has a ‘really big problem” getting thignsn done, it would be better if you exercised better overishgt of your employees who like to surf the internet doing things unrelated to work.
It is irrelevant whether you do or do not have “eperts” watching AlQueda – the “experts” should be able to tell you that “the big scary enemy” isn’t using telephones, but couriers.
DoJ response
We are able to address only the Terrorist Surveillance Program. We cannot
address the operational details of the Program or any other sensitive intelligence
activities. The Terrorist Surveillance Program allows the NSA to intercept only a narrow
range of communications. Communications are not targeted for interception under the
Program unless one party is outside the United States and there is probable cause to
believe that at least one party to the communication is a member or agent of al Qaeda or
an affiliated terrorist organization. FISA also employs a probable cause standard
(specifically, whether there is “probable cause to believe” that the target of the
surveillance is an agent of a foreign power). Among the advantages offered by the
Terrorist Surveillance Program compared to FISA is who makes the probable cause
determination and how many layers of review will occur before surveillance begins.
Under the Terrorist Surveillance Program, professional intelligence officers, who are
experts on al Qaeda and its tactics (including its use of communication systems), relying
on the best available intelligence and with appropriate and rigorous oversight, make the
45 American–Arab Anti-Discrimination Committee, American Civil Liberties Union, American Friends
Service Committee, American Progress Action Fund, Amnesty International USA, Arab Community
Center for Economic and Social Services, Bill of Rights Defense Committee, Center for Democracy and
Technology, Center for Financial Privacy and Human Rights, Center for National Security Studies,
Common Cause, Constitution Project, Darfur Alert Coalition, Democrats.com, Electronic Frontier
Foundation, Electronic Privacy Information Center, Fairfax County Privacy Council, First Amendment
Fund, Federation of American Scientists, Friends Committee on National Legislation, Hate Free Zone
Washington, League of United Latin American Citizens, Liberty Coalition, MoveOn.org Political Action,
Muslim Advocates, Muslin Public Affairs Council, National Association of Criminal Defense Lawyers,
National Committee Against Repressive Legislation, National Lawyers Guild – National Office, National
Network for Arab American Communities, National Security Whistleblowers Coalition, Open Society
Policy Center, Patriots to Restore Checks and Balances, People for the American Way, Privacy Activism,
Republican Liberty Caucus, Rutherford Institute, United for Peace and Justice, U.S. Bill of Rights
Foundation, The Multiracial Activist, World Privacy Forum.
38
Commentary
The many revies are part of what the Preisdet said they would follow; yet here we are led tobelieve even these steps are too cumbersome, adding to the view that the President is not following his revised procedures which circumvent FISA.
DoJ rsponse
decisions about which communications should be intercepted. By contrast, because FISA
requires the Attorney General to “reasonably determine[]” that “the factual basis for
issuance of” a FISA order exists at the time he approves an emergency authorization, see
50 U.S.C. § 1805(f)(2), as a practical matter, it is necessary for NSA intelligence officers,
NSA lawyers, Justice Department lawyers, and the Attorney General to review a matter
before even emergency surveillance would begin. As noted above, great care must be
exercised in reviewing requests for emergency surveillance, because if the Attorney
General authorizes emergency surveillance and the FISA court later declines to permit
surveillance, there is a risk that the court would disclose the surveillance to U.S. persons
whose communications were intercepted. See 50 U.S.C. § 1806(j).
After a thorough review, the Department of Justice has concluded that the
Terrorist Surveillance Program is lawful, because it represents a legitimate use of the
President’s long-recognized inherent constitutional authority to engage in warrantless
surveillance in order to gather foreign intelligence information, an authority that was
confirmed and supplemented by Congress when it enacted the Force Resolution. In
addition, the Force Resolution provides the statutory authorization necessary to satisfy
the requirements of section 109 of the Foreign Intelligence Surveillance Act, 50 U.S.C.
§ 1809(a)(1).
Comment: Why should we believe Hayden? He’s lied before. How do you define “helped deter” – that’s kind of vague. Rarther, the real standard is whether you are or are not following the law. Whether something is ‘good or bad” isn’t simply in whether it achieve speculate reulsts – but whether the pconduct does or does not follow the law.
DoJ Response:
We cannot, in this setting, answer questions about how the information obtained
through the Terrorist Surveillance Program is used and stored without revealing
operational details about the Program. We note, however, that General Hayden has stated
that information from the Program “has helped detect and prevent terrorist attacks in the
United States and abroad.” Procedures are in place, including applicable procedures
required by Executive Order 12333 and approved by the Attorney General, that govern
acquisition, retention, and dissemination of information relating to U.S. persons.
51. Finally, please explain whether you believe Congress should amend FISA to
provide the president with the necessary authority to conduct the terrorist
surveillance program. If the answer to this question is yes, please explain
what amendments to the FISA legislation may be needed. If the answer to
this question is no, please explain how Congress may effectively evaluate or
conduct oversight of the program.
Commentary: They call what is ignored “uncessary.” – makes you waonder about the attitude the White hOuse has toward it’s “interal procedures” – “hay,w e don’t want to follow those either.”
The Administration believes that it is unnecessary to amend FISA to
accommodate the Terrorist Surveillance Program. The Administration will, of course,
work with Congress and evaluate any proposals for improving FISA.
posted by Constant @ 6:36 PM
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