Constant's pations

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

Tuesday, June 13, 2006

Cheney's Covenant

This explores the range of abuses occurring under the EOP; and a general discussion of a framework to understand what else is going on under the President's direction.

Until the listed reforms are given serious attention, we judge the American model of self-governance has failed and do not recommend exposing capital to the US financial reporting system.

* * *

What’s going on: Adverse inferences

Where the courts may detect questionable, illegal activity, the government is quick to jettison the cases from the court.

There are fishing expeditions. There are warrantless interrogations and warrantless searches occurring. Americans are being picked up, detained for hours, and questioned about financial information, then dropped off without explanation.

Americans are being targeted for prosecution on petit, trumped up crimes in order to win them over as informants. In those cases where nothing is found, evidence can be planted; or other information supporting a contention of illegal activity can be manufactured.

Government employees, drivers, and commercial firms are used for domestic intelligence gathering. People are cooperating not because they support the government operations, but because of blackmail..

DoD Commercial entities operate stateside in intelligence gathering, in violation of the law. They have little to show for their work. Americans are being rendered to Eastern Europe, and there are floating prison ships.

* * *

This explores the types of conduct in the non-disclosed and illegal Presidential programs. In a general sense, the simple way to identify the illegal activity is to simply read the US Constitution and statutes and assume they’re violating those standards. However, this isn’t very helpful when exploring the novel and carefully hidden illegal activity.

One approach is to explore the general principles of this hidden activity, then develop a rough guide to the types of moral decisions the planners used. This will give us some idea of the range of “acceptable” conduct that violations the law. As reference, there are other blogspots related to this discussion:

  • FY06 Senate Intelligence Bill Extrapolation

  • Range of Executive Misconduct

  • Deconstructing the Iran-Contra Minority Report

    The goal here isn’t simply to identify what the President may have unlawfully directed; but to formulate a guide to indicators of what this illegal activity might look like. The goal is to identify the types of conduct that the Congress might become aware; and whether Congress is or is not in a position to detect the illegal conduct.

    * * *

    EOP Planning Body

    Let’s presume there is a working group within the Executive office of the President that is fully supported by contractors whose sole aim is to develop concepts and illegal programs. The issue is who is involved, what types of activity are they supporting, and how severe will the violations and abuses be before detection.

    The next step is to characterize the planning body which crafts, tests, develops these domestic activities:

  • When and how does it meet

  • What does it do

  • What approaches does it use to brainstorm

  • What are its weaknesses

  • What does it assume

  • What do they deem permissible

  • How does it avoid detection

  • What does it rationalize


    One approach is to carefully read the Iran-Contra Minority Report, and explore the arguments as if it were Hitler’s Mein Kampf. What this does it forces us to take a step back from the report as a simple report, and look at the Minority Report as a fundamental. Building block in the RNC philosophy.

    From this perspective, it’s easy to see how the 1987 Iran-Contra Minority Report was used as an input to the PNAC discussions on foreign use of military force. Conversely, we can use the report as a guide to understanding what thinking went into applying these principles at home to inter alia:

  • Expand/abuse power

  • Block oversight and accountability

  • Violate laws

    In the Iran-Contra Minority Report, Cheney and Addington usurped the Congressional Article 1 Section 8 “necessary and proper”-clause for the Executive. Although not constitutional, it’s instructive as a starting point for the analysis. One approach is to spring board off this principle and imagine the scope of the “Executive necessary and proper powers” that they would self-assign to justify asserting illegal power, then subsequently violate the law and avoid detection. This power is used to check, monitor, and neutralize Congressional detection.

    If you recall from the deconstruction of the Minority Report, there are also generic rules Addington and Cheney use when invoking legal doctrines. Using these rules we can forecast the range of things Addington and Cheney would give a green light to create, do, and hide.

    These rules help us understand how Addington works to expand executive power, and neutralize any legal constraints. This approach can be superimposed on new areas of the law – which have yet to have published violations – and apply the scope of activities that could be happening in these corners of the criminal statutes and Constitution. In turn, these new areas could involve novel ways to avoid Congressional detection.

    * * *

    Fundamental to the analysis is an understanding of the leadership in the RNC. They, in their minds, are completely rational. All actions they take are considered pragmatic, at the core of American values, and strictly loyal to the idea of national security and safety. To them the law is merely a stepping stone to preserve society: The economic fruits, standard of living, and fairly civil discourse compared to other corners of the globe.

    To understand the RNC approach, it’s important to understand their views to setbacks and failures in Iraq and Katrina. They do not look at it as a fatal disaster; rather, each disaster is merely a sign that they are incredible leaders facing difficult problems. Put aside the reality that their problems are of their own making; or that their incompetence helps contribute to the cataclysmic results. The key is to look at the RNC from how they look at leadership and solving problems: They don’t look at themselves as being failures, problems, or incompetent; rather, they look at themselves as being tested.

    * * *

    From a neutral perspective, the RNC has a major problem. They move without regard to the standards, examples, results, and oversight requirements.

    They also rationalize many things:

  • Violations of the Constitution

  • Covering up and suppressing information related to violations of the law

  • Inaction in the wake of misconduct and abuse

  • Cursory investigations into misconduct

    * * *

    One approach is to embrace how the White House staff looks at the political, legal, and national security landscape. The RNC leadership looks at the US as if it were a physical location to engage in foreign diplomacy, and an area devoid of Congressional oversight.

    This isn’t to say that the Congress has no role. Rather, it’s the opposite. Just as Congressional oversight was shaped to assent to an illegal war in Iraq, so too does the RNC look at the physical-United States as a forum to similarly shape Congressional checks.

    From this perspective, it’s easy to understand how the RNC rationalized the illegal NSA domestic spying activities: The United States is merely another front. Put aside the issue whether the combat operations are or are not a “war”; or whether the basis for war was linked with a credible threat; or whether the combat operations are or are not legal; or whether the combat operations are or are not linked with a declared war or simply an authorization for the use of force.

    In a general sense, the RNC does not distinguish between the nuances, and this is where they’ve run into legal problems. Clearly, the RNC got into to a problem when the (few) facts were disclosed, and there was no bonafide legal defense. Rather than put to rest the concerns, their defective legal arguments have simply heightened public concerns about “what else is going on.” These are well founded concerns in that there are, as AG Gonzalez has admitted, “other programs.”

    In a general sense, the US has a problem. By embracing non-sense from “What went wrong around 9-11,” the US has removed the very wall that might have otherwise acted as a speedbumb to an abuse of executive power.

    Think back to the 9-11 hearings. Rice reported that the DSP combined the FBI and CIA information. Assuming this contention is true and that a fully functioning DSP did adequately interface with the two agencies (that were otherwise separated by a wall), there’s nothing that would warrant removing the wall.

    Yet, the fiction of 9-11 has given us a solution which is merely a green light to more abuse. By tearing down the wall, the CIA now has a domestic role. This means that the lessons the CIA has learned overseas (from any location) can now be implemented domestically. What’s worse is they have few legal constraints, apparent Congressional endorsement, and they can take any action to fight the foe.

    Here’s the problem. The range of executive abuses clearly show the US is willing to act without regard to warrants or probable cause. Rather than rely on an “innocent until proven guily”-appraoach, the US has taken the opposite: You are guilty until proven innocent. This partially explain the arrogant way US government personnel interactions with American citizens.

    * * *

    The issue becomes: What would the EOP justify doing, and what are the likely results, in the following nexus:

  • Opportunity to apply domestically the CIA lessons from abroad

  • Climate where NSA-CIA activities, even when they violate the law, are explained away, offered amnesty, and face no meaningful oversight

  • The disinformation and propaganda campaigns employed abroad are used at home

  • The US Statutes and Constitution become a menu for what that US government will seek go violate using absurd citations of case law

  • People like Addington and Gonzalez will create non-sense exceptions to treaties, laws, statutes, duties, and other obligations to invalidate, ignore, abrogate, and not put into full force the duties, requirements, and responsibilities they have

  • Active combat operations overseas whereby civilian personnel are cross flowed between the military, intelligence, and local law enforcement

  • A likely approach to foreign combat operations that views the ground campaign and physical combat-support locations for Iraq and Afghanistan as testing grounds for new theories on employing force, imposing executive power, and winning over a civilian population.

    In this analysis, we presume that the Iraq-combat-problems are not simply about civil war, Iraq, or the problems with ethnic tension. Rather, the other side of the coin is the exposure of inherent problems and weaknesses within the American planning process which otherwise remain hidden when employed stateside.

    * * *

    The trends are simple and deserve to be stated. In simple terms when we look at the RNC approach to executive power, they rely on general principles:

  • Blame others

  • Deny information and power to others

  • Shift attention from the problems to the messengers

  • Tear down and destroy things that are valuable that they have not created

  • Target those factors that inspire hope in the opposition: Reality, problem solving, respectful interactions, reality, options, and solutions

    Here are some RNC approaches:

    A. Present a problem for discussion, identify those who offer solutions, then specifically target those leaders: They will either cooperate, or they will be politically destroyed.

    B. Tout the very things they detest – leadership, law, interests, and principles – in order to get others to feel safe, and offer a game plan. The next step is to then specifically target those foolish enough to embrace the illusory safe zone, and target the public.

    C. Offer an illusory crime, encourage the public to provide tips to address these issues, and then employ methods to circumvent what the public and law enforcement will do.

    * * *

    EOP looks at any intelligence gathering method as permissible. They view the law as something to be explained away later. Information is a two way street: The EOP looks at information like butter that covers the problems; and binds the leadership with the people.

    Information-gathering-dissemination is at the heart of the following activities:

  • Rendition

  • Propaganda

  • Torture

  • NSA-FISA violations

  • Domestic stops

  • Warrantless searches, interrogations

    Notice the focus of the EOP: They are primarily focused on gathering, using, and managing information, not solutions. Moreover, their approaches are at odds with the law; and their results, even when they choose to violate the law, are disconnected from reality.

    * * *

    The EOP looks at the US as a battlefield, where laws do not apply.

    * * *

    A close reading of the Minority Report shows us that the legal arguments are disconnected from reality and the case law. Yet, those who crafted these legal arguments are touted as being fine legal advisors. We can only conclude the EOP rewards those who refuse to question the illegal activity; and manufacture absurd reasons to justify twisted legal arguments.

    We cannot conclude that they blindly defer to others on whether issues do or do not violate the law. Rather, this issue never surfaces. They simply assert a higher principle in order to justify the larger momentum, regardless the direction to illegal and reckless outcomes.

    * * *

    The recent spat between Specter and Cheney is illustrative. Specter complained Cheney was doing an end-run, interfering with the Senate Judiciary Business, and leading an effort to thwart oversight of the illegal NSA activity. There are a few things to notice:

  • What Cheney offered as reasons to Specter

  • How Cheney attempted to thwart examination, and not fully cooperate;

  • What Cheney offered as a way forward, but fails to address the legal issues.

    There are several questions:

  • A. What does EOP do as a result to dissuade others from taking lawful action?

  • B. How does EOP get Executive Branch employees to not assert their duty to report illegal conduct?

  • C. How does the EOP create the illusion that the existing options are satisfactory, and that nothing new is needed?

  • D. Despite the above inaction and failures, how does the EOP reconcile the disinclination to respond to concerns about the illegal activity?

    * * *

    Let’s consider the nature of the domestic covert operations. Their philosophy is that what is permissible abroad can also be done at home. This activity builds off the lessons from abroad and does the following:

  • Abuses and engages with others to get a response and gather information

  • Violates the laws against Posse Comitatus

  • Violates restrictions against use of propaganda against Americans

  • Finds a method to blame others or find excuses to do it

  • They will actually implement activities they say have been cancelled

  • They use military units, which the public feels otherwise feels comfortable with, to engage in domestic surveillance.

    * * *

    DoD has within their authority to establish commercial entities as fronts. They do two things: Gather intelligence and engage in commercial activities to fund their operations. We judge the DoD is doing the same domestically.

    The commercial entities are supported by design, development, and support activities which include:

  • Data collection

  • Organization

  • Status reporting

  • Diversionary tactics

  • Cover stories

    Within each entity, there are a few individuals who know the real objectives. Employees working in these firms are not necessarily told their real function: To provide domestic-sourced intelligence to the Executive Branch. Rather, these activities are explained as market research, engineering studies, or option planning. It is likely the same types of analysis was used in the pre 9-11 planning.

    * * *

    It remains to be understood whether the participants in these domestic activities work as they do overseas. CIA is given wide latitude to invoke various stories to channel funds and solicit assistance.

    In those cases where the activity violates domestic law, it remains to be understood to what extent the EOP has given authority to personnel to appear to be with the opposition in the hopes of entrapment, or identifying those who are loyal to the fabricated stories.

    Also, it remains to be understood how targets, as they are approached overseas, are subjected to extortion for threatened loss of money, statues, power, or other damages if they refuse to cooperate.

    * * *

    It remains to be understood what would be fabricated, justified, or invested to justify this abuse:

  • Who are the scapegoats to blame for the inevitable problems

  • Which “unusual behavior” (used as an indicator of a “suspicious” person) is freely used without any expectation of sanction

  • What are the excuses used to justify the misconduct, bullying, and abuse

    * * *

    Mitigation and Reform

    The trick is going to be to identify:

  • Specific Church Committee recommendations which have been thwarted in new ways;

  • Which “issues” were “not likely to occur,” yet are well in place;

  • Which specific options were rejected, but need to be reconsidered;

  • Which legal rules have been twisted to justify illegal conduct.

    Here’s what needs attention: Securing a rigorous approach to

  • Understand the illegal conduct;

  • Timely reporting the misconduct to those who are interested and willing to take action to prosecute the violations; and

  • Understanding what can be done to detect, thwart, and mitigate this illegal domestic activity.

    * * *

    Reforms for the American Legal Community

    Addington is one example that executive branch general counsels do not face sufficient adversarial vetting through litigation. They are primarily policy advisors, and can remain hidden spreading legal non-sense far and wide. There needs to be a method to ensure that their defective legal arguments do not, as has been the case with Addington, sew the seeds to destroy the American Constitution.

    These abuses are not creatures of nature, but of people. The US legal community is abusing its public trust. There needs to be a mechanism where defective legal arguments are exposed, not subject to shielding as privilege, and are publicly discussed as a threat to the Constitution. When secrecy is used to justify illegal conduct, that does not inspire any love for the American model. Rather, the American model is shown for what it is: A sham.

    There needs to be public performance audits, they need to be timely, and this kind of legal non-sense needs to be nipped in the bud early, not allowed to permeate the executive branch unchallenged. It remains to be understood what types of abuse occurred to get the JAGs to stand down and not assert themselves at the outset.

    These lessons learned need to be better understood by the public; and the days of secret malpractice settlements need to end. We can only effectively oversee the advisors when we know the range of the abuses; what they have unlawfully assented to; and when we identify the tools at our disposal to better screen the work products and domestic threat to the US Constitution.

    There needs to be a better system to publicly audit the work products so that the public can better see the disconnect between the case law and the attorney work products. Here’s what’s needed:

  • Line-by-line accounting, forcing the legal community to inter alia:

    - Justify why their extraction of a case is believable;
    - Trace the legal arguments to a specific authority;
    - Demonstrate their legal arguments are credibly linked with case law;
    - Show that a particular case does or does not support a rule or point
    - Account for missing text from the citation;
    - Address the full issues they otherwise view as “dubious”;
    - Prove their contention that a particular authority is or is not valid;
    - Demonstrate there is a link between the documents and the work products;
    - Explain why substandard legal performance is not adequately vetted with peer reviews or internal controls;
    - Demonstrate there is a method by which the ABA samples cases to ensure there is a link between the original authorities and final motions; and
    - Credibly show there is a mechanism in place to resolve recurring problems with the citations and final legal EOP memoranda

    * * *

    Until Congress fully enacts a program to better vet and mitigate the legal issues related to problematic EOP legal arguments, we make the adverse judgment the conduct is not isolated to the current intelligence issues:

  • Unimpressive work products

  • Sewing deliberate seeds of confusion in the public to dissuade legal action or needed political pressure

  • Dubious due diligence

    * * *

    Americans are not reliable and have failed the test of self-governance. Until we see some serious attention to the abuses under the law, and a better system of governance, we do not recommend anyone expose capital to the US financial markets.