Constant's pations

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

Tuesday, May 23, 2006

NSL vs. The Constitution: Which Will Protect You?

If you want real protection, are you going to plead for a National Security Letter, or a Lawyer? You can't have both.

To get the American civilians to make a poor choice, this government paints pictures of doom. The solution is to make the government lawfully experience the gloom they have created.

National Security Letters are unconstitutional and violate the 4th Amendment, but have new significance in light of the NSA abuses. Congressman Conyers blogged that Seymour Hersh reported on the domestic NSA wiretapping. NSL's have been issued on the basis of illegally obtained evidence.

NSLs do more than abuse power, they destroy faith this government is serious about protecting the Constitution. We must now remind this government that We the People take our rights, powers, and obligations seriously, and we can lawfully revoke the power of Congress they use or refuse to use, assenting to violations of the Constitution.

We can create new rules that redefine treason to include any action which permits something that is not lawful, and is a direct attack on, and actual destruction of, the Constitution. It remains to be understood whether Members of Congress are willing to assert their oath freely, or require We the People to assert the full weight of the law upon them through the law.

* * *

National Security Letters are secret warrants, which the public cannot discuss. The problem with secret warrants is that they prevent accountability. NSLs have less to do with national security, and more to do with another unconstitutional objective: To silence discussion related to unlawful government conduct.

What's worse is when the NSA illegally gathers information, then uses the NSL not simply to go on fishing trips, but to silence others from discussing how the NSA illegally acquired the information. This is like banning publication of photographs simply because you want to suppress knowledge of your fear of photographers. Pictures don’t hurt you, your reaction does.

The purpose of this note is to discuss the very things that they do not wish to have aired; while at the same time exploring the real problem with the NSL.

* * *

Although the Constitution is the most important issue, let's for them moment put aside the Constitutional issue. You'll easily see why the other issues need attention.

The recent news from Congressman Conyers is that Seymour Hersh has discovered, through retired NSA personnel, the scope of the NSA domestic phone interception is much wider, involved listening to American citizens' phone calls, not just collecting phone numbers. The core problem is that the NSA was collecting so much information and suspects, that the only way to eliminate people form the suspect list was to interview them.

Unfortunately, the only way to interview them was to get a warrant, but if they did that the court would find out about the illegal activity. The "solution" was to ignore the court [read="Subsequent illegal acts to further the conspiracy of fraud"]; and self-issue national security letters; then go further and pick people up without explanation and go on fishing expeditions. You find out too late that you are both bait and prey to some nasty sharks.

This is an abuse of power. Time to turn those sharks into sewage.

* * *

The problem with National Security Letters is twofold: They permit secrecy where oversight is needed; and they create a distorted mosaic. The mosaic isn't simply fascism or totalitarianism, but it covers up the Constitution, hides it, and pretends the mosaic is real. The mosaic's weakness is that it cemented to the well respected Constitution: Some ignore the laws while invoking the "idea of the laws" to justify support of illegal things.

Despite their contempt with actions, they invoke the very document they actually destroy. To maintain public confidence, the leadership has to assert ideas at odds with their intentions, actions and results.

Recall their double talk: Gonzalez (thwarts oversight, says the press must be discpilined); Bush (refuses to enforce the laws, claims the US is a nation of laws); Rice (advises war crimnals, points to the founding fathers as inspiraction); Roberts (supports a fraudulent conspiracy, claims seriousness about his constitutional duties); Specter (bemoans the poor oversight, appropriates funds for suppressed activities) and Hastert (bemaons unconstitutional conduct, refuses to invetigate the President's illegal conduct) .

Their mosaic is stuck to the Constitution. Their politically-fatal choice was invoking the Constitution, as they should, their actions are seen what they are: Completely at odds with that document. This is not simply a question of hypocrisy, but legitimacy.

This is the key to their lawful destruction: When they are lawfully denied what is in the Constitution, they will invoke that document, but it will not be there for all. They might regret having deprived themselves of that guarantee, may be converted to a different philosophy. If they show no remorse, the Court is well positioned to create additional incentives.

* * *

This government drilled holes in the Constitutional shield. Many invoked excuses to stop the drilling.

  • A. Excuse 1: "We can't admit we're violating the FISA, so we have to find a way to remove people from the suspect list."

  • B. Excuse 2: "We're doing this to help people. By interviewing them, we're narrowing our focus, and giving them a chance to prove they are innocent. This is to protect them."

  • C. Excuse 3: "We can't let people know that we can't protect them, or find the enemy; so we'll assume that everyone is guilty, and by a process of elimination, we'll narrow the list down. This is to protect people."

  • D. Excuse 4: "We can't let people know that we're violating their rights, so we're going to make them be quiet about the illegal conduct."

  • E. Excuse 5: "We can't let people know we're going on fishing expeditions, so we'll keep them silent about what we're doing."

  • F. Excuse 6: "We can't let people know we're using illegally obtained evidence as a basis to do illegal searches; so we'll prevent the court from discussing what we
    re doing."

  • G. Excuse 7: "We can't let the public know that we really can't lead any effort to protect them, so we'll compel Congress to be silent about our defect approaches, and force them to be silent about the things we're doing. But we won't tell Congress everything."

  • H. Excuse 8: "We can't let people know that we're using illegally obtained evidence to self-issue warrants; or that some have been rendered on the basis of "failing to disprove they were guilty", so we assumed they were guilty and they are in Eastern Europe, Afghanistan, or Guantanamo."

  • I. Excuse 9: "We can't let people know that we have no real plan, so we're simply going to quickly move without regard to the laws. Even if innocent civilians are hurt, we will never be held to account. We will force the media to be silent."

  • J. Excuse 10: "We don't have a real reason to do what we're doing. We just are moving quickly. WE cannot let people know that we are not lawfully sharing information; rather, we'll just do it, even though there are rules against doing this. IF we get caught, we'll blame those who tell the truth."

  • K. Excuse 11: "We refuse to find out who relay placed the explosives in the World Trade Center Towers. We will simply use the information we get from torture to then target new people, even though that information is not credible."

  • L. Excuse 12: "We refuse to listen to the CIA about what is really going on Iraq. We will make the CIA assent to our will; then when we get caught with war crimes, we will blame the CIA for giving us bad information."

  • M. Excuse 13: "We refuse to follow the law. If we get caught, we will blame the prosecutors for interfering."

  • N. Excuse 14: "We refuse to ensure the laws if followed. We will hide our proceedings behind closed doors. Then we will prevent people from discussing our inaction and failed oversight."

  • O. Excuse 15: "We refuse to protect the Constitution. We will make new rules that permit violations of the law. We will hide evidence of that abuse of power and claim it is a secret. No one will be able to hold us to account for violations of the Constitution."

  • P. Excuse 16: "We have the superior right to abuse anyone. We can use any information, however illegally obtained to justify whatever we want. We can use our ignorance as the basis to justify secrecy and lack of oversight. We can use our accusations as evidence to detain prisoners, and deny them rights."

  • Q. Excuse 17: "We have the moral authority, and approval of God to embark on this crusade. If we make an error, God will sort them out. Sacrifices must be made, for the good of all. This is our destiny."

    * * *

    The point of the above list is that these are the types of things the Nazis used to justify the Holocaust. After the First World War, the Germans were subjected to many rules. WWII was an adventure for many Germans because they could break free from the regulations and let loose.

    The same thing continues to unfold in America. America after WWII has felt constrained by the USSR; when the Cold War ended, like Germany, Americans thought they could "do what they wanted." PNAC, Bolton, and the Iraq WMD are the symptoms. The core problem is that self-governance failed; and people embraced excuses to justify violations of the law.

    The Constitution, unlike this leadership, is clear on purpose, design, and structure. What is unclear is whether America will self-contain, self-destruct, or require outside intervention as did Germany and Japan.

    Yet, there is anther way. We can lawfully assert the rule of law. This means gathering evidence, and working -- as the Nazi hunters did after WWII -- to bring the RNC to justice. I propose that America seriously consider the lessons of WWII, and the Nazi hunters to do the same to the RNC. It should be the national policy of the American public to support RNC-hunters, to bring them to The Hague, to face war crimes trials.

    * * *

    It is time to

  • A. Document the abuses and violations of the law; and

  • B. Contrast those statements with the actions and the Constitution.

    They hope to avoid this contrast. Their mosaic is stuck. The Constitution is the foundation. The purpose of the law and an oath is to restrain people who might otherwise not freely do what should be done: Protect the Constitution, give up discretion, and be bound to act when they might prefer inaction.

    We are witnessing the early phases of the core RNC destruction, as they actively destroy their faithful members. The RNC leadership has butchered the unsuspecting scapegoats. Now, the RNC membership remains the last flock for political targeting. The RNC has fewer wagons, its circle is smaller, and the outside forces are larger. The RNC membership has to choose whether to remain hitched to unconstitutional conduct; or flee.

    Our job is to welcome them as they flee. Recall, their objective isn't to help you; their job is to save themselves. They remain fearful, and have spent many years in silence.

    But there is also joy. The truth is out, they can speak, and there is less a chance they will be rebuked. Be patient with them as you let them vent. You may want to create a special section for them to meet, discuss, and express their views: A place they can call their own. Yes, they may turn on you. Treat them with respect, not with disdain. Listen. Accept what they are saying -- you do not have to agree with it, but listen, learn, and with time you will understand their excuses for going with this.

    The way forward is to learn the lessons, and promise ourselves not to let this happen again. The goal isn't to smother them. The goal is to build something they can call their own, and something they helped create. You will think of something. But in your desire to resolve this, keep in mind there is the law, and that the courts cannot forever wait for people to get around to things. The goal is to resolve these issues, solve problems, and still protect this Constitution.

    * * *

    The national security letters, like the Senate intelligence committee, have denied the public the right and power to talk freely with an attorney and their peers. Curiously, if you contrast this with the "wrongs of Iraq or Iran," you'll see the absurdity of the US claims: America does the same as those they accuse. Thanks to a complicit Congress and media, America does a better job at suppressing the truth than Nazi Germany. But now we know.

    However, suppose Members of Congress refuse to change the law; and the courts are convinced to do nothing about the abuse of rights. There is a solution. If we must have illegal NSLs, we can reciprocate.

    Here is an approach. Think of what an NSL does, how it is crated, and what it permits the state to illegally do. The state was not given that power; in fact, they were explicitly denied that power, yet do it anyway: Secret warrants, suppress discussion, secret trials, and threaten others with discussing something that violates the law.

    * * *

    Let's turn this back on Congress and the Members of Congress and law enforcement who have assented to these unconstitutional violations. There is 42 USC 1983, but the problem is as with the NSA, there needs to be evidence.

    Congress was not given the power to pass unconstitutional acts, nor assent to a common course of conduct to suppress evidence of wrongdoing. We the People have the power to impose lawful consequences on Congress for passing laws which violate the Constitution. We do not have to narrow our punishment only to those who carried out that order, but those who should have intervened, and were in a position to do something: Those who knew, or should have known how power was being abused.

    If Congress knows something illegal, but refuses to discuss it, then is it the job of the public to find out. We are in charge. It is our duty to effectively govern when those we hire refuse, fail, and turn on us. We should heed the lessons of South Africa, Germany, Yugoslavia and Rwanda for reconciliation.

  • Congressional powers may be revoked, and stripped of the power to grant amnesty to those who violated the Constitution;

  • We could compel restitution to these who were wronged;

  • If done correctly, the state can be convinced to reverse itself, and outlaw conduct it had previously said was lawful;

  • Congress could make a law that imposes consequences on those who used NSLS; or offer amnesty;

  • We could give amnesty to those who speak and share what has happened; and

  • We can gather evidence, and hunt them as have the Nazi-hunters.

    * * *

    The public deserves a sense of justice, not more of the non-sense justice we've seen in the FISA court, Guantanamo, and the sham Courts Martial.

    Illegal domestic surveillance is a serious abuse of power and trust that cannot be rewarded, but must be punished under the law. Despite FISA preventing these abuses, the NSA and White House found a way to violate the law, abuse power, and violate rights. The issue is that this was well known, not stopped, but rationalized when it defies our values.

    There are options. We can explore what may lawfully be done to reciprocate on Members of Congress: How might the power of We the People be lawfully used to do something that will lawfully retaliate; what is to be done if Members of Congress immunize themselves for something they really should be held accountable for: Their oath, 5 USC 3331.

    Perhaps Members of Congress, if subjected to the same treatment as those who were "awfully rendered" and "lawfully targeted with an NSL," might reconsider their interest in oversight, the rule of law, and protections for those who claim to be innocent. If a member of Congress "cannot be subjected" to those consequences, why should anyone? Members of Congress have a good defense, as does all of America: We have the inherent Constitutional right to be free of abuse.

  • Why, despite that "concern for the Constitution," did this Congress defy the Constitution and their oaths?

  • What was their excuse, and might they share their thinking?

    It remains to be understood what mechanism We the People could lawfully use to go on similar fishing expeditions of Members of Congress, and lawfully target those who abuse power and violate the Constitution. Is 42 USC1983 sufficient; do we need new tools; and what is to be done to prevent this in the future?

    Those who are a part of this mess -- the Media, and government -- do not have a voice or a vote. They are irrelevant and no longer have a seat at the table for this discussion. It is We the People who are going to decide under the law what is to be done to lawfully retaliate, and lawfully reciprocate. Again, we do not advocate violence or lawlessness; the way forward is to discuss what we under X Amendment could lawfully assert as a power to reciprocate.


    * * *

    The NSLs appear to have been secret not because of national security, but because the NSA was going on fishing expeditions. They were using illegally obtained evidence to then use to self-issue warrants. Under this mode, fabricated evidence could be used to self-issue warrants for more abuse, rendition, and torture. This "leadership" refuses to discuss Rendering of Americans.

    Then we should reciprocate: And not publicly acknowledge their power, position, or what may lawfully happen to them. We outnumber them. We can write a new rule. We can compel Members of Congress to be treated as less than human.

    If they argue that they have "rights," ask them why; what right do they claim that insulates them; and why is this insulation not sufficient for others? Again, the goal here isn't to actually compel them to be treated like dogs -- although that is what they should be treated as -- but to force them to finally stand up and assert a right that they have denied others.

    Then they will face their dilemma: Why do they assert for themselves a right or privilege that they have denied others; and if they deny others that right, or refuse to be there to defined that right, what is to say that right is there for them to enjoy when they most need it? They have no answer because they always thought "someone else" would be the target, not them.

    Time to remind them otherwise.

    Then they will realize that they need to stand up for the rights that they denied with the NSLs.

    * * *

    NSLs are at odds with our law, and the frightful lessons of the British Monarchy. Supposedly our system was designed to prevent this. Yet, if we do not face the facts, we will not know what the problem is; or what is to be done to remedy this defect.

    There is no reason to believe NSLs are linked with real evidence, merely an accusation. That is not evidence; yet, Congress is the source of the rules of evidence -- so where is Congress when its rules are violated? They are silent; then it is our turn to speak, and deny the Congress the right to speak on what it is to be done.

    Again, the issue is: What is to be done when clear rules -- which Congress has passed related to the courts, the laws, and procure -- are not enforced; the Senate cannot turn around and compel the public to follow the rules and laws. We may choose to do something else.

    Again, we are not advocating lawlessness; rather, reciprocation. If Congress refuses to follow their rules, which rules do We the People create, that we too can arbitrarily enforce, or ignore?

    The whine form the RNC lawyers will be, "Oh, you're being arbitrary." Indeed, why can't we the People be as arbitrary as the RNC?

    The RNC asserts standard for themselves that they have ignored for others; yet, the RNC leadership may demand consistency when denied the same right.

    Make the RNC fight for what they truly want; and make them fight and stand up for things that all people should be entitled.

    If the NRC has taken away the voice, the right, or the power of any Citizen, make it the responsibility of the RNC to assert that right, or lose it.

    Think of the Filibuster. They threatened to take it away as a bargain; fine, it is time to take it away, and deny the RNC any means to avoid a majority vote to have them outlawed as a party. If the RNC truly wants to retain the right to exist, it will not get rid of the Filibuster.

    So, it is time to force the RNC to face the issue of Filibuster and put it up for a vote: Take away the right, and ram the consequences down the RNC's throat. Suddenly, the RNC will believe in filibusters.

    * * *

    The NSLs take on a new light when we consider the NSA's domestic calls. Now we know that the NSA was collecting information illegally; and the real goal was to keep people quite about the abuse, and nothing to do with National Security.

    By keeping it quiet, and suppressing the needed oversight -- which the NSLs and circumvention of FISA court did -- this nation then used secrecy to justify more abuses and excuses.

    What happened?

    NSLs aren't a legitimate showing of anything. By all accounts the NLSs are based on non-sense; the NSA data was illegally captured and used to self-issue NSLS; and the NSLs violate clearly established rights, thereby stripping those who used them of their qualified immunity, per 42 USC 1983.

    NSLs are as valuable as scrap paper. You could easily write them on toilet paper. The FBI uses shredded Congressional bills first for toilet duty, then return to the constituents the soiled documents in the form of an NSL.

    Fundamentally, why does the FBI bother self-issuing something that is worthless? An NSL is merely a formality by a bully, “You can choose which side of the face I bruise.” The FBI might as well knock down the doors as they did during segregation, when they did home checks, looking for mixed-race couples.

    Notice the contrast on the law. The US government would have us believe they respect the rule of law when it comes to immigrants, but American citizens, much less Congress, cannot expect the same consideration.

    In turn, we have to question the information Congress used to pass this; and what they were thinking. Yet, how was this able endure? It should be a national policy to explore the NSL's, openly discuss them, and make the Members of Congress explain why, in light of the NSA's illegal activity, the NSL's are related to anything credible.

    The problem with the NSLs is that they went unchallenged; and the NSA abuses tolerated in secrecy; and the President and Hayden lied about their criminal conduct without fear of consequences. Until Jefferson awoke from the grave in the form of Rule 603, no one had any reason to believe otherwise. Now there is hope. Apathy well fed and fueled the President’s abuse of position and trust.

    Again, in theory, the Congress should never have passed this law, and the law should have more quickly been struck down as illegal; and the courts should have been given the power to inject itself into the discussion to mandate a showing by the Congress and President of the facts.

    But this government has delusions of good intentions, despite reckless conduct and disastrous results. Time to wake up from the fantasy land, and discuss real solutions.

    * * *

    We should not have to refight the merits or flaws of the NSLs in re warrants; we already fought that battle in 1776, and we have the Constitution.

    The outrage is that despite NSLs being against the law and Constitution – illegal --, the abuses were then suppressed; and the government used circular logic to suppress information about crimes to justify secrecy when most needed.

    NSLs opened the floodgates to abuse. There are many things we don’t know. It remains unclear what was fabricated to pedal the cycle of secrecy and illegal government activity.

    However, NSLs and secret courts showcase American culture and governance:

  • There is inadequate public oversight and involvement of not only the Executive, but also the secret Congressional activity;

  • There is inadequate citizen, non-attorney involvement in Constitutional issues and questions;

  • Illegal activity was the fractured foundation to build a pyramid of abuses;

  • There was no outside checks on the NSA-like violations of the law; and

  • There is no reason to have faith in government operations or motives.

    These conditions are no different than 1776. For every problem, there is another opportunity to get it right.

    Today, we have the same problems, a fresh reminder, and the catalyst to get this right. We have the benefit of recent history; we no longer have to turn the page of history to think what the founders might have done "way back then."

    Some thought we got it right in 1978. Obviously, there were some loopholes, and those need to be addressed. Perhaps we should lawfully target the attorneys in the DoJ General Counsels' office with National Security Letters, and let them scream loudly, "Not us."

    If not them, then none of us.

    They wished this.