Constant's pations

If it's more than 30 minutes old, it's not news. It's a blog.

Sunday, May 28, 2006

NSA: Dubious claims, illegal crimes, unlawful war

The White House cannot credibly argue the FISA violations cannot be litigated. There is no need for the court to review the technical details related to the ongoing US Navy worldwide underwater fiber-optic splicing program. The illegal, domestic FISA violations can be litigated using redacted information.

The issue is whether the President will or will not follow the law, as the 3rd Amendment clearly says he must do during wartime. This President promised to enforce the laws and faithfully ensure he did his job. It is our job to review whether he remains fit for continued service as President.

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What if the Germans had known the Nazis were using ULTRA to support the Holocaust?

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The private litigation against telephone companies and NSA continues. The issue is whether a trial should go forward despite the assertion of privilege.

Over the weekend, the White House filed two motions arguing that the only way they can defend themselves was if they reveal state secrets. The government’s arguments fail.

If the secret information were suppressed, it would be still possible to conduct a trial and find that the President has violated FISA. There is no need to discuss the specific operational details in order to review whether the FISA has or has not bee violated. The White House similarly makes a dubious claim that discussing the illegal, domestic activity will reveal state secrets.

How we know the Government claims of secrecy are dubious

In order to prevail on a claim of privilege and have a case dismissed, the Government has the burden to prove to the court that the issue can only be discussed if classified information will be revealed.

The government’s position is false. The issue related to the FISA violations can be discussed without revealing classified information. There are well known DoD processes, and these have been ignored. Fraud requires only that agencies be ignored, or circumvented. The President has done this.

It is possible to litigate this case in open without revealing state secrets. First, the JROC information can be redacted. Second, the skipped procedures required to prove fraud can be discussed without discussion classified information. Third, the issue isn’t what does the technical system do; but how that technical system was used despite the laws contrary to its use.

It makes no difference how many times General Hayden may or may not have discussed the information with the Senate. Nor does it matter that the so-called victims of these violations may or may not realize what has happened. These are matters of criminal law; and the job of the US leadership and prosecutors is to enforce the law where there are violations.

There is no merit to the White House claim that they are concerned with state secrets. Valarie Plame’s outing is all we need to know. The real objective of the White House isn’t to protect any secret, but to immunize those who well know they’ve violated FISA.

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The government position is not an absolute bar to trial, merely a small, but surmountable hurdle. There is no credible claim that discussing behavior, and FISA violations will require revealing state secrets.

To review the FISA violations, one does not need to review the specific program or technical details. The process of confirming – that DoD well knew the FISA statute and violations -- is well documented in open DoD processes.

There is no requirement that the specifics of the broader fiber optic-interception effort be discussed in order to show that the President, Gonzalez, and Hayden have violated the law in domestically using technology outside the FISA court, and contrary to statute. Rather, DoD documents and open admissions clearly show the current activities violate the law. Whether that technical tool is a large or small box is of no consequences.

The issue here is whether the military technology, however it is designed or used overseas, is used consistent with the statue. We do not need to review anything that is secret to introduce into evidence open, fatal admissions contrary to the government’s interests. Gonzalez and the President have openly admitted they have not, as required, fully cooperated with the FISA court.

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Let’s consider the specific technical details of the current illegal program, in the United States, and discuss in broad terms why the secret information need not be discussed, but there is still a basis to hold a trial.

Putting aside the dubious assertions of concerns over state secrets, the government fails to show that a discussion of FISA violations will reveal state secrets. At no time has the government claimed how discussing an illegal technical intercept activity stateside will reveal the technical details of how the US NAVY physically splices the undersea fiber optic cables; nor does the discussion of the FISA violations reveal the operational details of how the information gleaned from tapped fiber optic cables is checked against HUMINT sources inside Moscow, Tehran, Havana or Beijing.

Further, when we discuss FISA violations committed domestically while using the fiber optic system, nobody is making any case that the US government reveal the specific methods it uses to then verify to the Senate that the information is or isn’t reliable. The results are telling. Despite worldwide intercept capability, the US government lies to the Senate, uses misleading information, and even if the enemy were to stand down or do nothing, the White House will fabricate information to create enemies out of allies. In the end, the White House remains lost, defeated, and horribly bruised within its own Party and Iraq.

Also, discussing FISA violations does not require the US government reveal the various development efforts to detect whether fiber optic data has been corrupted; or how potential enemy efforts to override fiber optic cables can be thwarted on the battlefield. The results are clear. Despite the complex weapons systems, the American military is unable to prevail over a fairly benign force armed with rudimentary explosive devices. We need to know why, despite the supposed information, this leadership makes reckless decisions.

At no time has the Government adequately demonstrated that discussing the FISA violations would require DoD and the Joint Staff to reveal the specific methods they use to ensure that information from the war fighters is protected, and is credibly linked to ensure successful combat operations. The facts are obvious: The Joint Staff, despite the secrecy, has been unable to prevail. Secrecy is being used not to protect the Constitution, but to hide reckless incompetence in the White House, Joint Staff, NSA, and DoJ. We need fact finding, not more secrecy.

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The government makes several faulty assertions. First it suggests that if the operational details were disclosed, then the enemy would modify its behavior. Yet, this assertion presumes that the US interception capabilities would not only be impaired, but that policy makers would be deprived of factual information to make informed decision.

The evidence before us clearly demonstrates the opposite. The world reaction or adjustments is irrelevant to this White House. Even if deprived of facts, or an enemy does something surprising like cooperate, this Administration will fabricate any evidence and present any dubious information to rally others for illegal activity at home and abroad.

Further, Cheney in his seventeen (17) visits to the CIA has shown he will impose the political agenda on the facts. That the enemy – whoever that is, this week-- may or may not do something abroad is meaningless when we already know that this administration will lie, violate the law, and ignore the constitution at home.

This compels the court to review the violations, not cast them to the winds or party faithless.

Assessments About the White House, DoJ, and NSA Conduct

White House assertions that the FISA violations cannot be discussed are dubious. The real objective is to hide the illegal use of military technology which violates the domestic statutes.

There is no valid claim that the FISA statute is unusual or that it affects absolute Presidential power. The 3rd Amendment makes it clear that the President can be constrained by statute during wartime. Rather, FISA simply affirms the President’s right to circumvent the Constitution, so long as he follows specific procedures.

Despite alleged enemy changes in operations, the White House was still directing the NSA to engage in illegal surveillance, and monitoring and transcribing American’s domestic-to-domestic telephone. DoJ asserts they were understaffed, yet refused to utilize the dedicated staff in the third branch of government. DoJ was duplicating the job of the FISA court to screen out dubious claims, and hide the scope of the illegal activity from the court.

The full scope of the wiretapping includes more than interception, recording, and voice transcription. This is irrelevant. Whether we focus narrowly on the efforts to keep these cases out of court, or the larger pattern of conduct, the objectives remains the same: To avoid accountability for abuse of power; to protect the President from a war crimes trial; and to ensure the RNC remains in power despite the well know violations of statute.

Unless the law is enforced we will have more abuse of power. This President cannot lead with facts or the benefits of secrecy. The real objective isn’t to protect any bonafide domestic activity – the activity is illegal; rather the true objective is to hide the scope of the illegal conduct and evidence of incompetence.

Now is not the time to jettison the case on the basis of dubious claims, but to challenge the President, NSA, and telephone companies for their dubious respect for the law. What remains outside the immediate discussion is the political use of that illegally gathered information.

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This is an urgent issue. It is important information for the public. There are several benefits to discussing the scope of the FISA violations.

The American public can decide whether they trust the leadership to prevent the abuse of power and protect rights. If Americans are not willing to discuss the methods by which their laws are violated, there’s little incentive they’ll realistically challenge the broader scope of deceptions used to justify military funding for dubious programs; and the other information sources needed to corroborate White House claims over Iran.

The issue affects the Congress. The US Senate refuses to act, and absent civilian oversight, claims a superior right to commit and ignore violations of the law.

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It is well known that Fiber optical cables can be intercepted. The Russians well know that their communications are intercepted. The issue is to what extent the Americans are fooling themselves into blindly embracing whatever they hear from these fiber optic cables.

The issue isn’t to protect sources and methods. Rather, given US intelligence blindly relies on these fiber optic taps as a bonafide source of information; the Senate has no catalyst to seek alternative sources, as they should.

If the Senate had known the scope and extent that the US blindly taps information -- whether it is from prisoners, open sources, or electronic intercepts -- the Senate might have asked some probing questions before the Iraq invasion. Indeed, they may have embraced another line of evidence, and done the same.

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In light of the known vulnerabilities with the fiber optics, we need to consider to what extent the US has used the “invulnerability” of the fiber optic system to encourage other nations to embrace a system which the US plans to exploit.

Meanwhile, despite the potential vulnerabilities, the work at the labs continue, creating methods and technologies that:

  • Are in-flight interception capability to defeat missile guidance system which rely on fiber optics;

  • Create an energy field that can affect fiber optic cables remotely; and

  • Remotely access, affect, and change the information flows in combat equipment and command and control.

    * * *

    Broadly, the issue before us isn’t whether the President should or should do this. He should be able to protect us. The issue is whether he will do so in a manner that is consistent with the laws that he promised to enforce; or outside those laws which otherwise require his to follow certain steps and procedures.

    The problem before us is that the NSA has a certain type of fiber optical intercept capability which they rely on; and that capability has been used against Americans. The issue isn’t whether or not Americas should be free from violence; the issue is whether they will or will not have their rights protected.

    At the core of the issue is the Constitution. This White House has shown distain for the laws. Even if the court, media, and other investigators are dissuaded, the public can well comprehend what is going on: The White House cannot defend itself in open court; nor can it explain why it is using an intercept capability in a manner contrary to statute or the FISA court.

    The United Sates already has a constitution. The RNC would have the public believe that the role of Presidential power is in question. Yet, the statutes are clear. We are no longer in the post 1776 era where the political debates are framing the Constitution, or whether the country does or does not embrace a particular legal argument for or against the rule of law. This nation has one Constitution, and all public officials swear an oath to that document.

    Our system of laws mandates that the court be present. The Third Amendment confirms that no President is absolutely free to do what he wants during war time. There are times when the President may do something that is contrary to the Constitution, but that conduct is carefully regulated by law, not something he can do in secrecy our on his own volition.

    At the core of the DoJ argument against following the law is their contention that they do not have enough people to do the jobs. Yet, despite this claim DJ personnel are well known to surf the internet making changes to various non-DoJ related websites.

    The RNC membership have been betrayed. They’ve been asked to believe, and trust their leader in the White House. He is widely known to be incompetent, reckless, and unfit for continued service as the President. Again, either the courts, Congress, the media, or some other body at The Hague may ultimately decide. In the short run, the American public may make adverse judgments.

    More broadly, the Senate needs to understand to what extent its information its being provided is false. It’s fine to expend vast sums for SIGINT; quite another to ignore the facts, and continue despite what the intelligence is telling the leadership. The nation is not well served when the White House argues that SIGINT should be kept secret; while at the same time putting pressure (over 17 times) on analysts over Iraq WMD or the inconvenient results need a second look.

    If Congress is not interested in finding out how the government is violating the law, that is fine. The public is well capable of finding out which Members of Congress knew of the illegal activity, and failed to assert their oaths.

    * * *

    The issue before us is simple To what extent we will permit the cover-up over FISA violations to hide the larger incompetence in the White House, DoD, and the Republic an Party. The only way this nation will credibly face the issue is whether we are honest about what is going on, the results, and what the alternatives are.

    This Administration continues to lie, not to protect secrets, but to avoid accountability. Yet, it is well known that the White House has no legal defense, and that despite asserting any secrecy doctrine, the Americans can see the results: Incompetence.

    It is our view that the dubious White House claims are not linked with a real desire to hide to what extent the US Navy continues to tap fiber optic lines; nor is it to hide any credible threat mitigation plan. Rather, the real object of the White House is to abuse power, avoid consequences, and then blame others.

    It is time the American public realize there is a difference between lawful domestic surveillance, which requires a court; and foreign SIGINT which requires secrecy. Yet, despite asserting a claim of secrecy, this White House cannot plan a war, rally resources, or win over those who once welcomed them with open arms. Now they brandish arms well oiled in the heat of battle.

    America has no reason to trust this White House or the leadership in Congress. Without the facts about the FISA violations, we will have little to make an informed decision of what adjustments are needed to better protect our forces, ensure they have reliable systems, and that we remain free to enjoy the fruits of this Constitution.

    * * *

    This President knows fully well that he’s been caught violating the law. It is one thing to wage illegal, covert operations overseas to foment civil war in Iran; it is quite another to do the same at home.

    The White House and Congress must fully embrace where they find themselves: Almost June 2006, fully 6 months after the NYT revelations, a few short weeks before the election. We’ve heard nothing but non-sense form the White House, Gonzalez, and this President. The results in Iraq, Katrina, and the botched Senate Phase II are clear: This crew cannot lead, even when it has the luxury of a war of choice, and cannot execute a simple war, even when hiding behind the walls of Congress.

    Because this White House enjoys the luxury of secrecy, it spews forth non-sense, creates fiction, and wages illegal war. Now is not the time to defer to secrecy, but to openly find the truth. Without accountability for this President, we can expect more illegal conduct, abuse of power, and attacks on our well fought for, cherished rights.

    We can expect more. America has a choice. If America is unwilling to investigate of this President’s failures, violations of the laws and statutes, and frauds committed upon the courts, this President will likely wage more illegal wars.

    Dubious claims do not create fact. Secrecy does not ensure informed leadership. This nation has to decide how much money it wants to spend on body armor; or in collecting information that is cast aside when developing war plans.

    This President has been caught not only violating the law, but in using his position to abuse those who speak out about his violations. He fails to make any credible cause that there is a linkage between undersea fiber optic tapping off the coast of Iran, with whether he does or does not have to follow the laws at home.

    Thomas Jefferson thought that he could ignore the courts when expanding into the Mississippi. The nation learned that Jefferson, despite writing the Declaration, had great contempt for the courts. This President is no different. He speaks of nice principles, but like Jefferson he is willing to defy the law and our core values. This President is the very tyrant this nation was designed to defeat, not just on the battlefields of Europe but in the court rooms of The Hague. Fortunately, America has had Supreme Court Justices willing to put the rule of law first, and then lecture Presidents over the issue of the law.

    * * *

    America is not at a major crisis point. The dark years of the post-Revolutionary period are long gone. This nation has faced far larger problems. The Articles of Confederation were cast aside, and then a new Constitution was created only to be challenged again during the Civil War.

    Not too many months ago, in the wake of the Cold War, many years after the US failed to learn of the Japanese attack until too late, this nation did not respond during Sept 2001.

    This nation owes it to itself to find out what really failed, who placed the explosives in the World Trade Center, and what is required to compel this Congress and President to put their oath to the Constitution before their loyalty to secrecy and their co-conspirators. Despite promising one thing, we learn he is no different than Ken Lay.

    * * *

    There is an easy way and a hard way to the Protect the Constitution. We the People shall prevail. Some lawyers think they know the law; others well know the Constitution, and how to prevent the abuse of power, protect rights, and assert one’s oath.

    As we learn the truth, we can make informed decisions what changes are needed to better protect this Constitution from the domestic threat and tyranny in both House of Congress and the White House.

    If this government wants to make a claim that these FISA violations are needed to protect the Constitution, it has a seemingly impossible task. Rather, this Congress and President permit the FISA violations because they dare not ask the real questions: Are they willing to stand up for what they took an oath for, or are they primarily loyal to contractors who actively support illegal war.

    Ken Lay, Scooter Libby, and Tom Delay have asserted their innocence. Yet, Grand Juries have a way of finding out the truth, even when the President wants to bury the truth at the bottom of the Arctic Ocean. What the NAVY may do off the coast of Finland, Dubai, Taiwan, or Cuba is irrelevant when adjudicating war crimes and violations of the American Constitution in Federal District Court.

    Even if the White House suppresses the evidence, we can still move to indict Members of Congress who refuse to assert their oath, then lawfully remove the President from office when the weather is more favorable on the surface of the sea, regardless the goblins and ghosts of Atlantis.

    There is no credible basis for the White House to assert any state secret privilege. The court should DENY the motions to dismiss the case, and proceed to trial.