Constant's pations

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Thursday, May 11, 2006

NSA: Gonzalez linked to alleged obstruction of justice plot

AG Gonzalez has been linked to an obstruction of justice investigation.

Gonzalez appears to be the target of that investigation.

The US Attorney General, Alberto Gonzalez has been sinking into quite a mess. His problems mounted when he re-engaged with Senator Feingold over issues would could warrant disbarment.

That's a minor issue compared to his current problem. This week the DoJ OPR announced that it was shutting down an investigation into the DoJ actions related to the NSA.

DoJ OPR reports that they were not able to get the "necessary" clearances. This is problematic for Gonzalez in that he oversees DoJ, and well knows the case law which permits DoJ OPR to review information.

But that's only the first problem. The next problem is that the DoJ OPR has to coordinate their report with the Attorney General.

The net result is one thing: An obstruction of a lawful agency inquiry by the DoJ. There is one person who can solve this problem -- the attorney general -- and there is a second person who has the power to resolve this deadline -- the President.

The problem for the President and Attorney General is that they are no longer passive observers. Rather, they are now targets of an obstruction of justice investigation.

* * *

You can see how Gonzalez looks at the NSA and intelligence statutes here: [Re-interpreting language to justify anything Click ]

* * *

Let's go through the details. DoJ OPR's responsibility is to look into conduct within the Department of Justice. They are the good guys.

The bad guys are those that are violating the law, getting in the way, or obstructing lawful inquiry.

DoJ OPR's role in this is to gather facts. The Attorney General is seen more as a gatekeeper. If DoJ OPR has a problem, they go to the Attorney General and say, "Please knock down this wall."

That's theory. Let's talk about reality and what is going on with the NSA. This Attorney General knows full well that the NSA activity is illegal. HE was in the White House acting as the President's chief legal advisor.

But there is one problem. Then White House counsel Gonzalez does not have a special "privilege" for immunity. Rather, as Attorney General he works for the public.

There is precedent to have Gonzalez' subpoenaed. The Nixon case 418 U.S. 683 reminds us that presidential privilege -- an excuse to obstruct fact finding by suppressing information -- can be trumped.

This is the problem the President and Attorney General now find themselves. They have no legal defense. Their only option is to obstruct fact finding.

This is no longer theoretical. It is now actually happening:

  • A. The US Attorney General is obstructing investigations by failing to ensure that the DOJ OPR can gather facts as is required under the statutes; and

  • B. The US President is obstructing a lawful inquiry into the facts related to his orders and unlawful use of the NSA to violate the Constitution.

    * * *

    The DoJ OPR, when they cannot complete their job, is subsequently put under review to determine what the problem is.

    This is where Gonzalez is currently having a problem. Gonzalez is the reason that the DoJ OPR could not do their job; and the Attorney General is the one that reviews whether this "after action report" is or is not acted upon.

    This summary report is not something new, but is well recognized by the courts, and is something which can be linked with an obstruction of justice charge. Here is the case law and statute:

    [ 237 U.S. App. D.C. 302 ] [ 18 USC 1505 Generally ]

    [ Impeding duties Falsification ]

    You'll notice that the courts do no look favorable on this conduct, awarding fourteen [14] points: [ouch]

    * * *

    In short, the US Attorney General not only has no legal defense, but he cannot explain why DoJ OPR has been denied the access to information. Further compounding his problems is the fact that he has failed to ensure the summary report explaining the problems are appropriately handled.

    Bluntly, the DOJ OPR has been blocked for a non-sense reason which the Attorney General well knows is illegal.

    Again, [ 237 U.S. App. D.C. 302 ] reminds us they have summary reports; NSA and DoJ fail to explain why no summary reports were provided to DoJ OPR.

    335 U.S. App. D.C. 135 reminds us that it is not lawful to interfere with Congressoinal proceedings.

    436 F.3d 1140 reminds us of the three elements.

    * * *

    The preliminary inquiry has started. Here are the allegations against the Attorney General:

    Allegation: DoJ AG has unlawfully interfered with the investigation into the NSA illegal activities.

    The excuse of "classified access required" is moot -- DoJ OPR can get access to sanitized versions of the NSA reports and document.

    The DoJ OPR has to submit a report to Gonzalez. It remains to be understood how Gonzalez hoped to escape the 14 points.

    * * *

    Here are the types of investigation questions being asked. Once the Special Prosecutor is assigned, they will be in charge of brining this information to a grand jury for an indictment.

    Each of these questions is related to the case law and statute. The role of the FBI at this point will be to formally lead an investigation into the facts related to the DoJ OPR declination and obstruction; then expand the inquiry to find out what is going on with the NSA activities.


  • A. Once DoJ OPR was denied the clearances, what review did Gonzalez or others make as required to determine whether the declination was appropriate;

  • B. When did DoJ AG first learn of the DoJ OPR declination;

  • C. Was the declination provided after or before DoJ AG learned that the phone companies had been subpoenaed;

  • D. When was AG Gonzalez notified by the White House, DoJ OPR, or anyone else in the universe that there was a proceeding related to the NSA;

  • E. Who physically sent a message, discussed the proceeding with Gonzalez and the DOJ OPR involvement;

  • F. How was AG Gonzalez statements before the Senate Judiciary Committee on 6 Feb 2006 inconsistent with the findings that the President had -- contrary to testimony -- had engaged in unlawful data mining;

  • G. What was the AG Gonzalez reason provided for not volunteering his knowledge of the DoJ OPR proceeding to the Congress at the time of his testimony;

  • H. Once Gonzalez was provided status on the NSA clearance requirement, what effort -- if any -- did Gonzalez take to ensure that the DoJ OPR was investigated;

  • I. How were the results of the investigation provided to the Attorney General;

  • J. Who was assigned to review the DoJ OPR's inability to get the NSA information;

  • K. What threats did the DoJ or NSA provide to the various phone companies for them to remain silent about the actual information which DoJ OPR needed;

  • L. What contracts were provided/withdrawn on the basis of the phone companies potentially cooperating with the DOJ OPR request for information; and

  • M. What valuable financial consideration was in jeopardy if DoJ OPR was given the information related to the NSA program.

    * * *

    Based on what little we know, we can only do one thing: Make adverse inferences. It appears the situation is not looking good for either the Attorney General or the President.

    Here are the likely findings, and it remains to be understood how the Senate Judiciary Committee incorporates these likely adverse judgments into their line of questioning for General Hayden, who was assigned to the NSA during the allegedly illegal NSA monitoring, and is now up for review to lead the CIA.

    Likely Special Prosecutor Findings: Obstruction of Justice, Perjury, Witness Tampering

    1. DoJ OPR well discussed with Gonzalez the status of the investigation.

    2. It was before the 6 Feb 2006 Senate Judiciary Hearing that Gonzalez knew full well the scope of the NSA Activity; and the threats made to the phone companies for them to cooperate with unlawful surveillance without warrants.

    3. In 2004, more than three years after the NSA illegal activity had started Gonzalez "suddenly realized" that he had taken no action to get the changes. This defies reason.

    4. Gonzalez is a trained attorney, and well knows the requirements of the law. He has fatally admitted that he knew the statute and the delay; and has failed to communicate he's serious about finding a solution.

    5. Rather, Gonzalez appears to have been behind the effort to stifle the DoJ OPR effort to get the NSA information required to support a Member of Congress, allegedly in violation of Title 18.

    Likely Grand Jury Indictments against Gonzalez and Bush

    Based on the available information, we judge there is ample evidence to justify a conviction, removal from office, and a grand jury indictment against Gonzalez related to obstruction of justice:

  • Gonzalez knew well there was an ongoing proceeding;

  • Gonzalez knew that the NSA and DoJ were required to respond to questions from Congress;

  • Gonzalez was well positioned to influence, affect, and otherwise threaten directly or indirectly the NSA contractors who refused to illegally support the warrantless data mining;

  • Gonzalez knew well that the NSA data mining was only a small part of the overall activity designed to target American citizens in violation of the law;

  • Gonzalez has failed to lawfully cooperate with the Congress as required under the statutes;

  • Gonzalez and his co-conspirators know full well the data mining program would not be lawful or approved by the courts, so rather than submit the plan to the court for their review, they did the opposite -- then corruptly persuaded phone companies to remain silent about the threatened loss of contracts;

  • The US Attorneys working closely with AG Gonzalez know full well the communications they have had with the phone companies has been intercepted by GCHQ, and that they cannot be sure their office has not already been penetrated by DoJ undercover informants loyal not to the President or AG Gonzalez, but to the Constitution; and

  • Gonzalez knew well that his statements, actions, and conduct were wholly at odds with the statutes, Constitution, and law of the land.

    Gonzalez has no excuse.

    Denied: In light of the many violations, DoJ has failed to justify confidence; rather the opposite is more likely true: That counsel is fully aware -- or should be aware -- that this is a ruse to cover up criminal activity. [ See: 986 F.2d 547, an agency assertion can be rebutted ]