Constant's pations

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

Friday, June 30, 2006

Constellation: Keisler Up For More Pumelling

WSJ reports Keisler is up for the 4th Circuit, having already been pummeled and rejected.

  • Is DoJ spending time on FISA warrants? No, they're surfing the internet: here

  • Do DoJ staff attorneys have the law on their mind? No, they have groins.

    * * *

    Alert: AT&T, Filibuster Nominee

    Keisler, involved in this AT&T illegal activity, has already had his nomination rejected once before.

    The Keisler confirmation hearings will be a test of how seriously the Senate, as it failed to do with Hayden, will engage in oversight. As we saw with the Specter-Cheney spat, the Senate is not credibly asserting power, merely going through the motions. That is not leadership, but negligence of one's lawful obligation to protect the Constitution.

    We've learned alot since December 2005, when the NYT officially reported the illegal NSA activity, which Keisler should well understand. We need to get a straight story on the DoJ OPR blocked investigation, how Keisler fits into the illegal government activity.

    The voters should carefully watch the Senate confirmation, inter alia:

  • Is the Senate serious about its 5 USC 3331 oath to the Constitution;

  • Is there sufficient investigation of the abusive DoJ approaches to the American public on the NSA warrantless surveillance and DHS warrantless interrogations;

  • What method, if any, does the Senate use to check the abusive DoJ; are the threats to withhold funds serious;

  • How effectively does the Senate screen those like Keisler who show a demonstrated contempt for the Constitution and notion of rule of law; and

  • Does the Senate ask probing follow-up questions related to the NSA activity, problems with DoJ ORP, the lack of ABA-related peer review investigations by DoJ OPR, stonewalling into the NSA illegal activity.

    * * *

    The Supreme Court Hamdan opinion is timely: Keisler's work product is now visible. The lessons shed light on the thinking in DoJ and the Executive branch on issues of power, statutes, and legal obligations.

    During confirmation, the Senate to review the AT&T matters. It is irrelevant that Keisler may likely argue that he cannot comment on ongoing litigation; Keisler's legal argumetns in Hamdent match the thinking on the illegal NSA activites.

    Keisler's Hamdan argumements were struck down:

  • Powers of the President during war time;

  • Whether the court does or does not have a role in assenting to the rule of law;

  • What is to be done when the three branches of government defy their oath, and refuse to check abuse of power;

  • Where there are procedures in place to ensure compliance with the review requirements.

    * * *

    There is little reason to have confidence Keisler is going to be independent, or will truly check power. On all counts, the Hamdan case showed us that the entire Keisler legal argument was twisted and perverted. We can expect the same non-sense while he's on the bench.

    Keisler assents to abuse. An independently minded officer of the court would have resigned long ago from the cuss pool inside DoJ. Keisler has freely chosen to bathe in that cuss pool.

    Per Federalist 78, the likes of Keisler were intended to be reviewed, carefully watched, and subject to impeachment for refusing to assert the judicial oaths and protect the Constitution.

    * * *

    The Senate has not been given the courtesy to make fully informed decisions on the illegal NSA-DoJ activities. The courts have been ignored and sidestepped. Although Keisler knows the laws, he has defied them, and refused to remove himself from the illegal planning activity in DoJ.

    Rather, he does not respect the system of checks and balances. He respects consolidating power, and is not a credible nomination for the bench.

    * * *

    Keisler is at the center of the disaster in Iraq. His legal arguments have inspired the insurgency. Iraq has proven a disaster. This President can be expected to make absurd decisions to ensure reckless policies as we have seen in Iraq are rewarded, not punished. This Executive cannot be trusted to make informed decisions about the legal interests of the United States.

    The Senate is not interested in close oversight or challenging the disaster in Iraq. The Iraq WMD issues have never been resolved. Yet, Keisler while in DoJ continues to fend off needed oversight of the failed campaign in Iraq.

    But not to be outdone, the Executive's abysmal performance is inciting the Taliban to stand up to a weakened America. Keisler has been part of the legal community that destroyed the Constitution, undermined American prestige, and is now the target of battle. He freely chose to embrace what should be rejected. For that, America should reject him.

    * * *

    The DoJ legal crew warrants close scrutiny, and does not deserve any deference. Keisler had the choice whether he did or did not want to assert this legal non-sense; he's also freely taken an oath to the US Constitution; and while in the DoJ he's also had the chance to make comments to the DoJ OPR.

    The ABA has a known oversight problem, and they are not sufficiently adept to set a proper tone. I have no confidence in the ABA in effectively conducting peer reviews on Keisler. [ Details: Expectations of ABA Leadership Not Met ]

    I have no confidence Keisler takes his ABA-related obligations seriously or will fully implement the Cannons of Judicial Conduct. His track record on fairly "quaint" bar association rules prove wanting.

    * * *

    Keisler isn't merely a symptom of a bad system run amok, but a culture that defies the rule of law. He is part of the problem, not the solution.

    Review closely the lessons of Charles I in England, and you will see what is at the heart of the abuse which Keisler believes is warranted. [ Ref ]

    The risk of having the likes of Keisler on the bench is that this Executive's abuse of power will be endorsed and ratified. Keisler's accomplishments in DoJ include taking American Jurisprudence back to the pre-Magna Charta days. Ref ]

    It remains to be seen whether Keisler is allowed to continue to perpetuate an abusive system from within, or whether that system ultimately is defeated on the battlefield. With Keisler's nomination, this American government continues to lay the foundation for the 4th Reich. [Ref ]

    * * *

    We need some answers as to which internet surfing he's been doing while in DoJ. Here are some sample problems that show us the DoJ Staff attorneys are not doing their job, and spending time on non-DoJ issues. [More ]

    This comes at a time when Gonzalez said that the DoJ attorneys were "too busy" doing other things and couldn't follow FISA.

    Gonzalez statements not only amount to alleged perjury, it is utter non-sense. The IPs have been traced to the attorneys that Gonzalez said were "too busy" to get warrants, thereby raising serious questions about
    - the excuses Gonzalez has provided;
    - the adequacy of Keisler's supervision;
    - the unlawful practices Keisler has embraced; and
    - why we should believe Keiser can competently be expected to do what is expected of him.

    Keisler has a problem with the ABA rules of professional conduct, and is willing to let AT&T-related client loyalties through Sidley Austin taint his efforts directed at the States. This does not inspire confidence in his independence; rather he remains loyal to illegal, reckless disregard for the Constitution and laws of the land. He has no excuse, and refused to remove himself from these illegal acts.

    Keisler freely chose to remain associated with the DoJ-NSA illegal activity. A true legal professional would have resigned, but Keisler chose to remain, refusing to reuse himself despite the obvious conflicts between DoJ-Sidley-AT&T.

    * * *

    Keisler is well interwoven with the arrogant violations of Geneva. In Hamdan, Keisler attempted to subvert the Judicial system. Again, he's chosen to align himself with the very illegal conduct that the Third Reich's Goering was indicted for: Violating the laws of war.

    If you want someone on the court that is going to defy the Constitution, you have a problem. Keisler is not your solution.

    Keisler is not acceptable and should be investigated by DoJ OPR for his alleged violation of public statutes, and complicity with the illegal NSA activities and broader warrantless interrogations under DoJ-DHS control.

    Keiser is in the center of this. His conduct needs to be investigated. I expect the list of questions which Gonzalez hasn't responded to, be thrown back at Keisler.

    We need to get a straight story over the Chief Justice Roberts Ethics investigation before we proceed with Keisler's nomination. There are serious legal issues which warrant public understanding, discussion, and debate. There appears to be a larger problem which needs to be reconciled well before we consider Keisler.

    If the Grand Jury chooses to review this matter, consider the steps that you as a Grand Jury Member can now take during your deliberations to have your report made public. Ref

    * * *

    We need a straight story from Keisler his connection through Sidley Austin to AT&T; and a thorough discussion with the Senators on the Hamdan arguments he's provided. His entire legal theory has been discredited, and raise serious questions as to his personal choices to use or not use his legal background.

    It is not credible that "he was just working for the client," as his real client is the US Constitution. He has mixed loyalties, convoluted thinking, and clearly assent to violations of the law for "other objectives."

    When given a choice between the law and power, he put his loyalty to an illegal agenda above both. This approach is from the Iran-Contra days, which Cheney and Addington have infected the entire federal government. Make no mistake, the same non-sense this leadership in DoJ used is well linked with the Iran-Contra Minority Report. [Ref ]

    Consider the larger climate of abuse, intimidation, and arrogance which this DoJ has fostered. We have combat troops in Iraq making by-name threats against Americans who are engaging in Constitutionally protected activity. [ Ref ]

    Keisler is closely associated with this criminal enterprise inside DoJ. There is no merit to any comment that the issues have been investigated; DoJ OPR has been denied any power to review the legal issues related to the unlawful NSA activities.

    We can only speculate what types of "emergencies" Keisler, if on the bench, will assent to as the Executive grabs, then abuses more power and violates more rights. [ Ref ]

    Hamdan is merely the first stab at the dying RNC corpse.

    * * *

    It is irrelevant which legal peers give him accolades. His peers were the ones who blew the horns celebrating abusive treatment, illegal war, and violation of the laws of our land.

    It is irrelevant his academic credentials or peer ratings. They are dubious, as evidenced by his reckless decision to remain associated with those who consistently choose to freely defy the Constitution.

    This Administration, and Kreisler’s legal arguments, have been used as the basis to violate the law, treaties, and Constitution.

    Yet, Keisler has an obligation, through Article 82 of the 1929 Geneva Convention, to ensure that ground commanders fully enforce Geneva. Kreisler’s comments and legal arguments defy any confidence he's doing what he should: Ensuring Geneva is fully followed. I see no evidence that Keisler takes this legal obligation seriously.

    He cannot be trusted to do what should be done to protect the Constitution. Rather, he can only be trusted to commit to an agenda of deception, intimidation, and selective reading of the case law. His demonstrated performance does not inspire confidence in his thinking, judgment, or his leadership potential.

    * * *

    SWIFT is the needed information this country needs to ask the right questions:

  • What did Keisler know about the use of data to target Americans for warrantless interrogations;

  • Why is Keisler associated with an organization that chooses to defy the courts;

  • Why should we believe Keisler is serious about the importance of the judicial system given his decision, and alleged agreement to engage in the conspiracy, to ignore the courts on the NSA-FISA issues.

  • What role did Keisler have in intimidating the phone companies, or suggesting there would be adverse consequences if they did not participate in the illegal NSA activity?

  • What roles does Keisler have in the efforts to target Americans for their vocal opposition to what is an illegal occupation, now turned disaster, in Iraq?

    Keisler's conduct is at odds with the "concern" this Administration would have us believe they have. This leadership, as does Keisler, will say whatever they think the Senate will digest, without regard to what the Senate has sworn an oath: The Constitution.

    Where there are not answers, we can make adverse inferences.

    This Administration does not wish to cooperate with lawful fact finding, oversight, or credible defense and protection of the Constitution.

    We may reasonably assign those attitudes to those who freely choose to act as their agents and staff attorneys in the Department of Justice.

    * * *

    Keisler does not deserve to be on the bench. Further, there needs to be a line of questions that raises the real issue: Should Keisler be permitted to practice law.

    In my view, given his reckless disregard for Geneva, and outright threats to State Attorney Generals to not pursue the AT&T litigation, Kreisler’s got some major problems related to his professional oath of office, and commitment to the judicial system.

    We are a system of laws, not a nation that should be rewarded for absurdity.

    Keisler remains a threat to the US Constitution and should be filibustered before the Senate. If approved, he should be closely monitored for purposes of impeachment, removal from Judicial office, then ultimately disbarred.

    * * *

    Let's consider the specific Hamdan language as it relates, by extraction, to Keisler's role in the AT&T-FISA litigation in DoJ.

    Each of theses issues are matters of Constitutional law, which Keisler on the 4th Circuit Appeals is expected to adjudicate, not ignore. This is merely a list of issues which surfaced in Hamdan which Keisler needs to discuss, as they related to the warrantless interrogations of American citizens:

  • Why are witnesses being denied access to information?

  • Why is it permissible to exclude evidence form defendants?

  • Why are treaty obligations being ignored?

  • Why are clearly established, legal requirements being abrogated?

  • Why are people being detained without charges being brought against them?

  • Why are clearly established court requirements getting explained away?

  • What is the basis to invent illusory charges that have no legal foundation?

  • What is the basis to depart from judicial procedures?

  • What basis is there to believe that there will be suitable checks on sweeping, unfounded, and unconstitutional claims of Executive power?

  • What specific excuses is the American judicial system willing to entertain to deny rights, not prevent the abuse of power or otherwise not enforce what should be enforced: Treaties, statutes, and the Constitution?

  • What role did Keisler have in the planning of various options that would be employed to circumvent the court and Congress?

  • What is the basis to assert that any court cannot review a matter related to a judicial issue?

  • How does any legal "expert" claim that the court can credibly denied any power to review or not review whether an issue is or is not constitutional?

  • Which fabricated emergencies is Keisler willing to embrace as an excuse to not assert judicial power over either Congress or the President?

  • What is the basis to assert that the Executive has exclusive power to do anything, when the Constitution clearly divides power?

  • How can Keisler argue that treaty obligations are exclusively under the purview of the Executive, when it is Congress that has the power to ensure those treaty obligations are preserved, and the rights promised are protected?

  • What jurisdiction is the Executive claiming is exclusive, but has no credible basis in law, treaty, or other governing standard?

  • Why are Congressional requirements, that Executive conduct complies with the law, ignored by the Executive and not the subject of something DoJ staff attorneys ensure is respected?

  • Why should the public have confidence in Keisler's role, opinions, and contribution to the reckless DoJ violations of rights, where there is no constitutional basis to expand any Presidential power beyond what is only delegated in the Constitution?

  • What is the basis to assert that the executive's actions are permissible when they are devoid of legal foundation?

  • What role did Keisler have in supporting aggressive war in Iraq?

  • Why should the public believe the arguments provided to justify why the Executive is claiming needs to be done?

  • Given the reckless, negligent disregard for the Constitution and laws of the land, why should we believe any of the convoluted arguments the government is providing as a justification for this conduct?

  • Why should the public believe that the Executive will follow the law; or conversely, what basis is there for anyone to believe that the things the Executive is saying he is or is not doing are lawful?

  • Why should we believe that the procedures DoJ-NSA use in the 45 day review, outside FISA, approach the standard of review of the court?

  • If the FISA-NSA-DoJ reviews are "just as good" as any court, why is the President unwilling to provide this information to the court, as is required under FISA?

  • how can anyone in DoJ say, "The FISA court cannot be trusted," when the conduct which violates the law is sanctioned by DoJ Attorneys like Keisler?

  • What is the basis to say, "The FISA court cannot be trusted to keep secrets," when it is the DoJ OPR that is denied the needed access to find out who is using secrecy to hide evidence of criminal activity inside DoJ?

  • What is the state of mind and thinking of a DoJ Attorney when they argue that defendants in any trial cannot review the evidence being used to hold them without charge;

  • How does one reconcile the clear requirement that there be bonafide charges based on evidence, and the ability of a defendant to defend themselves, with the perverse notion that the laws of war requiring this standard be ignored?

  • How does any attorney within DoJ credibly look at themselves in the face when they are contributing, through the reckless disregard of rights of innocent people, to the insurgency in Iraq?

  • Do the DoJ Staff attorneys not comprehend that their reckless disregard for the laws of war, Constitution, and other international treaties is directly making the United States citizen less safe, and more vulnerable to attack by those who can lawfully reciprocate against America for abuses committed against anyone?

  • What is the basis for any attorney in DoJ to assert that precedent from a period before a specific statute is or is not relevant; while the subsequent legislative and treaty changes after that precedent expanded the legal obligations of the Executive to do or not do something?

  • What is the basis to rely on exceptions to rules which are from precedents before the Acts of Congress and treaty obligations?

  • We are in 2006; where does one draw the line on exigency: What standard, what measure, what indicator is there that the exigency is not present, and that claims of exigency are merely ruses to justify abuse of power and violation of rights?

  • Why should the public have any confidence that any DoJ staff attorney is serious about the law, when the record before is clearly one of finding absurd excuses to not ensure the laws are followed?

  • A plain reading of the statutes and treaties makes it clear that there are specific obligations on the government to do and not do things. The arguments Keisler's provided demonstrate no comprehension that he's willing to embrace the law as it is, but merely twisted the law to support illegal activity. Why should the public have any confidence that Keisler is able to read a statute as they are, not as he wishes them to be?

  • When reviewing a case for jurisdiction, Keisler's arguments in Hamdan show he's unwilling to recognize the relevance of the treaty obligations. The oath includes an obligation to enforce all treaty obligations.
    - Why should the public believe that Keisler takes his oath to the US Constitution seriously;
    - What treaty obligations and other statutes does Keisler know DoJ-NSA are violating, but the NYT is being targeted to remain silent about?
    - What government or non-government activity is Keisler aware of that takes illegally obtained information, then uses that information to target American civilians for warrantless surveillance and conduct warrantless interrogations?
    - What role did Keisler play in creating the contracting vehicles that would transfer private data from AT&T to any commercial or government facility for analysis, even though there was no bonafide warrant to engage in this activity?

  • The AG has lied to Congress and not fully cooperated with ongoing investigations into the illegal NSA activity. Based on the DOJ OPR investigation that was blocked, there's only one person that could ensure the DoJ OPR could not do their job: The attorney general. Given Gonzalez' veracity problem, why should we believe that Keisler reasonably relied upon the Attorney General's assertions and certifications about whether warrants were or were not required?

  • What is the basis for anyone to believe that Keisler is serious about his oath to the US Constitution, all treaties, and the ABA professional responsibilities when:
    - Clear treaty obligations are ignored;
    - Criminal activity within DoJ and NSA is not reported;
    - He remains connected to that activity;
    - He has not removed himself;
    - He continues to provide in court arguments which are wholly inconsistent with the US Constitution, case law, governing law, and treaty obligations?

  • It is the responsibility of legal counsel to ensure, through Article 82 of the 1929 protocol, that the laws of war are enforced. There is also an attorney duty under the ABA rules to remove themselves from illegal activity; and report misconduct and illegal planning for illegal activity to the DoJ OPR. Why should the public believe that Keiser is serious about his obligations given inter alia, Keisler's :

    - Decision to remain attached to the illegal DoJ planning;
    - Refusal to fully inform DoJ OPR of his personal knowledge of the illegal procedures which defy statute and treaty obligations;
    - Continued presence with DoJ Staff attorneys who continue to provide material support for the illegal Executive activities;
    - Assent to having DoJ OPR blocked from reviewing the matters he personally knows about in re the NSA-AT&T illegal activity and coordination; and
    - Refusal to resign from what is otherwise an ongoing, illegal criminal enterprise within DoJ?

  • When we have a notion of "rule of law", how does Keisler decide what is to be reviewed: Which treaties are or are not ignored; which Congressional statutes are not included?

  • Consider. Keisler's construction as to what is or is not in the "rule of law" bucket.
    - How does Keisler explain why his arguments have been wholly devoid of any credible consideration for the requirements in clearly promulgated treaty obligations?
    - Why should we believe that Keisler is serious about the nation of "rule of law," given his reckless disregard for this DoJ OPR reporting requirements; the obligation to remove himself from illegal planning; and the ABA reporting requirement to not engage in illegal planning for unlawful activity?