Deconstructing Addington’s Iran Contra Minority Report
Summary
Iran-Contra Minority Report cherry picked from case law to arrive at perverse legal conclusions and invented unconstitutional powers. The Vice President and Addington invoked a non-delegated fictional "necessary and proper" clause, attempting to invoke a power exclusively delegated to the Legislature. The RNC membership has been betrayed by this reckless leadership.
These notes may be useful as you prepare for the Fitzgerald Grand Jury cross examination with the Vice President. A close reading of the Minority Report will give you many insights into the Vice President’s state of mind as he discussed legal issues with Libby and Addington 2000-2006.
Also, when examining the many illegal Presidential domestic programs (more to be revealed related to warrantless surveillance/interrogations), note closely the Military Law Reviews discussing "laws of necessity." Cheney and Addington invoked Jefferson's sentiment of "ignore the law." The JAGs know full well Lincoln, as is this Executive, violated the law.
The Judge Advocate Generals [JAGs] need to be subpoenaed to provide their full, non privileged legal discussions, which contradicted the Vice President and Addington's legal analysis and conclusions. The results are obvious: Violations of domestic an international law. There is no bonafide claim of privilege when, as in this case, the objective of claming privilege is to suppress public knowledge of illegal activity.
Deconstructing Addington’s Iran Contra Minority Report
For purposes of the Grand Jury preparation, it’s possible to glean valuable insights from the Iran-Contra Minority Report as to the Vice President’s state of mind in re Libby and the ORCON.
We judge Addington is one of the targets of the Fitzgerald Grand Jury, and go into details the basis for this contention.
The information below is a brief overview of the 1987 Iran-Contra Minority Report, and an attempt to flesh out some of the damaging, fatal information with respect to the 2006 FISA issues.
[Note: this is rushed; contains many spelling errors, no links, and formatting problems: Will be updated. Check back for more information.]
INTRODUCTION
This is a review of the Iran-Contra Minority Report Case Law.
The purpose of this review is to identify the specific language contained in the cited case law that directly contradicts the present Addington argument in re the illegal NSA activities.
Based on the Gonzalez hearing and FISA-related case law invoked since the Dec 05 NYT revelations, we judge the Minority Report and Addington have similarly used selective interpretations of the case law.
Moreover, a plain reading of the Iran-Contra minority report shows that Addington and Cheney clearly recognized Congressional roles and powers in the President’s domestic activities, which they now (apparently) claim must be remain secret.
We judge the invocation of state secrets has nothing to with any bonafide State claim of privilege, but is a dubious exercise to thwart public comprehension of the full scope of the individual actor's illegal activities. These are outside the protection of privilege and the ORCON classification guidelines, and remain subsequent factors for the Fitzgerald Grand Jury to review.
This section lists the Key Points for Members of Congress and your staffers to keep in mind as you review the Iran-Contra Minority Report.
Key Points
Addington has no credibility as a legal advisor. It is impossible to rely on his written statements. There is generally a long list of exceptions, other views, and larger points which he ignores.
“Military necessity” and Jefferson were invoked to justify lawlessness and power in foreign affairs, not simply to ignore Congress, but violate treaties. That approach was applied domestically, and invoking secrecy violated the Constitution and American citizens’ clearly promulgated/established rights.
To argue for secrecy over the NSA illegal activity, Addington relies on Constitutional Convention notes which broached the secrecy agreements. The 1789 Constitutional Convention Debates (“Debates”) were never meant to be disclosed; delegate Luther Martin first disclosed the secret proceedings.
The “definitive” compilation of the Debates was not finalized until 1917, indicating between 1789 and 1917 the Supreme Court relied on “something else,” raising serious doubts about Addington’s contention in the Iran-Contra Minority Report that the Constitutional Convention Debates and “precedents” were clearly established in re Lincolns (otherwise) illegal activities in the 1860.
The military laws reviews published in 1986 and 1988 completely undermine Addington’s 1987 and 2000-2006 arguments related to Presidential authority. The Military Law Reviews fatally destroy Addington’s legal arguments. Addington’s legal arguments cannot withstand a challenge by the JAG or an adversarial system; he fails to assert (as required) Article 83 of the Geneva Conventions (requiring the laws of war be adhered, enforced, and well discussed).
Addington has argued both sides of the issue between the Iran-Contra Affair Minority Report and the NSA-FISA-abuse issues, broadly applying case law which expands Presidential power, while narrowly applying or ignoring the rules which limit Executive power.
There is no inherent or implied power. There are only delegated powers. Addington and Cheney have usurped the legislative Article 1 Section 8 “necessary and proper clause” as a “an implied power clause,” arguing the Executive has the same. This is legal fiction. Federalist 34 specifies that the Executive is merely an administrator, and that his power are specified and few.
Addington has rejected limits on power; yet, the Federalist Papers and Constitutional conventions clearly argue the opposite: That limits are real. Advocating action which is at odds with the Constitution is not consistent with one’s fiduciary duty as an attorney.
3rd Amendment explicitly constrains Presidential power during wartime, and is well established Precedent for the Congress to restrain how the President uses power during peace and war. Anti-Federalist views constraining executive power at all times are well documented in the Federalist Papers and the First 10 Amendments of the Constitution; It is a separate matter whether those restrictions are enforced or the violations indemnified.
Federalist 78 imposes a legal duty on the Court to void unconstitutional conduct and acts. Clearly established rights, duties, and law cannot be tramped; the Constitution remains supreme during peace and war. [Affirmed in K-Case]
End of Key Points
We checked the Addington’s notes in the Iran-Contra Affair Minority Report. The results are disturbing and have implications for the Fitzgerald Grand Jury investigation.
In short, Addington demonstrates a commitment to an illegal agenda, regardless the legal facts or precedents to the contrary. Addington fails to consider other views that contradict or might illuminate flaws with his original premise. This approach is consistent with the Vice President’s seventeen [17] visits to the CIA in re Iraq WMD. Addington and Cheney share a common agenda of shaping information to match their agenda and expectations.
We can measure Addington’s approach to information by the disconnect between his citations and the other views of the Constitutional Convention; and ignored language in case law and the Military Law Review. Central to the analysis is an understanding of the problems with the Constitutional Convention Debates and the written record. The proceedings were originally intended to be secret for fear that disclosure would give those who opposed the new Constitution Ammunition to defeat it. This in itself is curious in that Addington relies on the now-disclosed Constitutional Convention Debate notes (arguably, a legislative act) as a basis to assert secrecy in the Executive branch on the NSA issue to accomplish essentially the same objective: Avoid public discussion and opposition to issues which warrant scrutiny.
Another item of historical trivia is that the delegates, in some cases, never compared their notes until twenty [20] years after the Convention, well after Luther Martin violated the secrecy notes. This is important in that there was never an official record of the Constitutional Convention; thus any argument Addington gives that the Constitutional Convention Debates did or did not definitely conclude or argue anything is questionable. At best, he over reaches. For example on 17 August 1789, the delegates discussed to make or declare war. Central to our understanding of Addington is to carefully note how he frames the Constitutional debate from 17 August. The issue isn’t what was or wasn’t said; but how other accounts of the same discussion points expand or contradict what Addington Contents. Addington’s contention in the Iran-Contra Minority Report is that the delegates essentially “agreed” that the Executive had the power to make war to defend against sudden attacks; while the Legislature has the power to declare war.
However, there is a problem. The core issue at the Convention wasn’t whether the war making activity should be a primary Executive or Legislative function; but whether the Legislature should have the exclusive power to wage war. The delegates argued, because Congress did not frequently meet, and time to debate issues, that the Congress could not effectively manage a war. This may have been true in 1789 in the absence of the internet. Today in 2006, things are much different.
The point is that Addington consistently misstates, ignores, or selectively twists the delegates 1789 comments into language that was never meant to be applied to the Executive. Rather, the only true record of the Constitutional Convention is the Constitution itself; it was not until 1917 that there was a definitive record; thus Addington’s reliance on, and highly malleable interpretations of the 1789 debates on the surface are questionable.
The delegates were focused on what the Legislature had the power to do. Because the delegates agreed that the Congress would only have the power to declare war, this does not mean that the Executive had the power to do “all other things.” It may have been assented to or through precedent have been something that the public and Congress have accepted.
Addington would have us believe that the 17 August 1798 Debate was definitely expressing a desire for the Executive to have the exclusive power to wage covert operations, violate the law, or otherwise do things above and beyond war, and Congress has no role. To the contrary, Congress has the express power to make all rules “necessary and proper” to carry out its functions. This means that when the Congress passed the Boland Amendment saying how funds would or would not be appropriated, that was the intent of the Congress: To prohibit exactly what Addington said, relying on the 17 Aug 1789 debate, the President could do.
In general terms the delegates were concerned about Legislative Tyranny, but they were also concerned with Executive Tyranny. They discussed a tri-umverate Executive. Given what we know of the abuses, it is appropriate to consider those options which were rejected on the basis of assumptions which are no longer valid: The difficulty of communication. Rather, in light of what we know of the abuses under Addington, it appears the Congress should revisit the rejected options and open it for a debate: What alternatives, which were rejected in 1789, need to be considered as an effective, timely check on Executive Tyranny in the 21st Century.
Taking the broad view of Addington’s approach to information (as measured by the disconnect between what the delegates were actually arguing in 1789, and how he reports them in the Minority Report), we can arrive at some general principles or rules describing how Addington approaches legal issues, policies, original works, and how he picks and chooses from language to arrive at specific assertions. In short, Addington’s major problem is that it does not appear he ever expects his statements to be second guessed, examined, or considered by a neutral adjudicator. Rather, it appears that Addington relies on physical and emotional bullying to dissuade his peers and others from doing exactly what should have been done on the 1789 and 1987 documents long ago: Contrast what was said about the documents; then cross check those assertions with what is known, not simply asserted.
We walk away with a general impression of Addington that he is well suited to work with Cheney not because Addington has specialized legal knowledge or understanding of a particular legal matter; rather, it is because Addington and Cheney approach the world in the same way: Picking and choosing information to suit an agenda. This is at the heart of the Iraq WMD issue. On this point alone we judge Addington is more closely under the Fitzgerald Grand Jury spotlight that we might otherwise understand.
Further amplifying Addington’s likely involvement in the Iraq WMD disinformation campaign is the general conclusion about Addington’s approach to information: He fails to consider other views that contradict or illuminate flaws with his original premise. Again, a careful reading of the original works from 1789, the full Federalist Papers, and Addington’s retelling of the issues fully supports this conclusion: Addington is agenda focused, not law or fact focused and is at the heart of the PNAC approach to Iraq, WMD, rendition, abuse, and Guantanamo.
The more one examines the statements in the Iran-Contra Minority Report, and compares them with the other views related to the Constitution, Federalist Papers, and the Convention Debates, the more one realizes that there is a disconnect between what is expressly lawful in the Constitution, and what Addington argues as an extraction. Think of this as a zipper: On one side is Addington; on the other side is the textual reality of the Federalist Papers, full delegation notes, and actual Constitutional language. As one probes into the Minority Report, it is analogous to slowly pulling a zipper, exposing the divergence between Addington’s memoranda 2000-2006; and the textual reality linked to the original debates and case law.
At this point, the analysis has merely begun. We would hope that the Grand Jury, legal scholars, and members of the American Bar Association when they review the signing statements take the time to share their results with the voters and Members of Congress.
IN short, fact checking is impossibly when relying solely on the Iran-Contra Minority Report. The Grand Jury and Members of Congress will have to dedicate resources and time to review the divergence; we recommend the Congressional Research Service be brought into the nexus and the results fully disclosed in a non-partisan manner.
It is our view that it is impossible to rely on Addington as a reliable source of legal information, case law review, or any opinion related to a policy or legal matter. Rather, upon cursory examination, it is clear that his assertions are wholly disconnected from reality, legal opinions, and legal precedent. Rather, he like Gonzalez simply picks and chooses. Addington is like an actor/produer-turned-blogger that relies on hype and a desire to promote an agenda, rather than someone who offers real solutions and can credibly assert a well founded point. Like an insecure blogger who has no legal training or professional accreditation, Addington is one to rely on tricks to manipulate others and willing to violate standards in order to carry favor with those he aims to please. Like all bloggers who rely on hype and manipulation, Addington is clearly transparent and incapable of withstanding close scrutiny and quick to really others to abuse those who dare to notice reality. Bluntly, this is the glaring similarity to how Ambassador Wilson and his wife were treated.
At this juncture, we encourage all staffers, Members of Congress, and members of the public to throw Addington’s memoranda where they belong: In the trash. His legal analysis cannot be relied upon; he remains a poor source of information; he cannot be relied upon for objective analysis; and he clearly knows his weaknesses, invoking his bullying to hide his failings. Addington’s major problem at this point is that he does not have enough support to both do his job, wage a legal defense, and at the same time deal with the growing public awareness of what he’s been doing. He’s becoming less effective, and we recommend the Congressional leadership counsel the President and Vice President to ask Addington to resign or take another position.
Based on the similar conduct and patterns between Addington and the revelations on the CIA-name outing, Addington is no longer simply a passive observer, but a central player. Because of the similar patterns of conduct (selective citation of history; unreliable fact checking; and conduct at odds with the law) we fully expect the Grand Jury to probe more deeply into Addington’s role, his contribution, and the apparent disconnect between the law and what ha been done. We fully expect the Grand Jury to indict Addington; and that Addington is on the last months of his otherwise unblemished association with the Vice President.
Addington’s central problem is that he’s claimed precedent and “clearly established rules” which are not based on reality. For example, given what we know about the Constitutional Convention Debates and the absence of a definitive retelling until 1919, this means between 1789 and 1917 the Supreme Court relied on very selective readings of the debates. The key is that the court is involved; and at the same time, what Addington may selectively glean from the 1789 debates is wholly at odds with the Military Law Review discussions of Lincoln’s illegal conduct. The JAGs know well the case law is at odds with Addington and the Precedence. WE judge the Grand Jury would benefit if they closely examined the JAGs to better comprehend the detailed discussion they had on the specific legal issues related to the “law of necessity” as it relates to the Vice President’s state of mind, and what he viewed as acceptable in retaliating against Ambassador Wilson.
It is curious to note that there is little public discussion on the linkage between Jefferson, the law of necessity, Lincoln’s’ real liability, and the current legal issues facing the Vice President, Libby, and Addington.
Broadly, the issue comes down to the secrecy and debate functions of government: How the Executive and Legislatures compare and contrast when it comes to secrecy, debates. It is curious that the secrecy provisions of the Constitutional Convention Debates were violated; and Addington benefits from these disclosures to subsequently argue for secrecy on the illegal Executive Department. The point is degree: Addington argues for higher secrecy on illegal executive activity; while enjoying the leaks from Congress from his peers in the legal-consulting world. It is curious that Addington enjoys the benefit of Constitutional Convention debates in order to twist the conclusions; then he derides leaking when there is a credible legal threat of others doing just the same over issues of illegal activity in the executive department.
Addington is invoking a secrecy clause (to hide illegal activity) to do exactly the opposite of what happened with the Constitutional Convention debates: Hide information which might otherwise be used to oppose the delegate’s conclusion. Subsequent Constitutional language mandates the debates be published; putting aside the issue that some information is not bonafidedly classified, we need to explore the issue of “who has the power to debate.” Clearly, the separation of powers clause exclusively puts the debate function in Congress. The public will have to take a step back, when examining the 2000-2006 events, and understand to what extent despite clear FISA statutes, did the Executive Branch engage in the very “debates” which the framers exclusively transfer to the Legislature. Indeed, it is appropriate that policy and procedures be debated with the executive; but that debate is not appropriate when it comes to clearly promulgated statutes and the Constitution. There can be no debate “Whether one does or does not follow the law or procedures.” Yet, this is exactly what Addington and others did debate, and made conclusions defying Federalist 78: That no one is above the law; and Federalist 10 that no man is a judge for himself.
Again, it will take time to comprehend what failed. What is clear is that the debates of 1789, despite long ended, have been re-opened by the executive to appeal to ambiguity, then invoke rules which contradict the Constitution, thereby putting men above the law. This is illegal tyranny, and something which the delegates did discuss.
IT is time to take the broad view and explore what is to be done, when despite an oath to the contrary, weak and insecure people like Addington have access to power and abuse others. The short term solution is to extend a hand to those who well know what has happened; and let them know that the world well knows what has been going on. Despite the “Confusion” that Addington and the Vice President would have us believe exists, its well understood by even the most stupid of bloggers that Addington is a buffoon, insecure, and incapable of withstanding careful cross examination. He shall have his chance to trip before the Grand Jury.
Rest assured, it’s only going to get worse. As the word goes out worldwide what Addington has done, the Council of Europe continues to expand their probe into the illegal Rendition program. Fourteen [14] European Nations have been linked. The fundamental question Addington is going to have to eventually answer: How many American citizens did the CIA, under Addington’s watch, get kidnapped and taken to Romania and Poland. There are far too many CIA flights originating in America.
At the same time, given Addington’s love of case law from Europe, we can only wonder whether foreign courts like those in France ultimately decide that Addington was part of an effort to illegally transport personnel for subsequent illegal abuse, torture, and death. The French Court has found that the railway companies are liable for their contribution to the Holocaust in that they directly supported the movement of Jews from France to their death in Auschwitz. The same could be said of what could happen to the CIA contractors who provided the air craft, even if they currently remain hidden behind shell companies run by lawyers who, like Addington, love to abuse others rather than admit that they are violating the law.
Addington in the Iran-Contra Minority Report well cites various railway case law;. It remains to be understood how these lessons were invoked to “immunize” the CIA aircraft companies from subsequently legal exposure, litigation, and public discourse. Given what little we know of the CIA transport, and Addington’s apparent love of applying the lessons to protect his alleged co-conspirators.
We learned what they were capable of in Honduras and Nicaragua. Now, Members of Congress are going to learn what Negroponte and Addington are willing to do stateside, in the wake of a Grand Jury Investigation and European decisions to continue broadening, depending, and expanding the probe into It is well established that those who support war criminals remain subject of life-long investigations and ultimate prosecution.
The core problem Addington has is that he cannot hide. He is in a defined three dimensional space. He is only one person. The world now knows what relationship he has with the events. The big problem he has is that even the most bungling buffoons can figure this out. It remains to be seen what happens when a professional litigator and US Attorney ably provided with the full affidavits decides to do when discussing the issues before the Grand Jury. Addington has no hope of victory. It is only going to get worse.
To re-iterate, the problem isn’t with the Constitutional Convention debate notes; the fundamental problem is that the Military Law Reviews directly contract what a reasonable attorney (with prior experience as DoD General Counsel) should assert when it comes to matters of treaty obligations, presidential power, and the law. Lincoln is only the first of many illustrative notes showing Addington’s case law and legal assertions are wholly devoid of precedent.
A trained investigator can easily review the case law which Addington cited in the Minority Report and other public memos, and see that there is a glaring disconnect between what the United States is doing, and what its legal obligations are. The Council of Europe continues to advance, despite the excuses the American Bar Association may offer for inaction or apparent reckless disregard for their professed devotion to protect the Constitution. The American Bar Association appears to be rather lazy.
The world should take note when evaluating your capital allocation options: American is only a nation of “rule of law” so long as the lazy, incompetent, and stupid lawyers are willing to do what is difficult: Stand up against what is wrong, even when they are bullied by their peers. They’ve shown they are weak, stupid, and not willing to put their oath first simply because they require a disaster before they act. That disaster arrived long ago. His name is David S. Addington. It is time to broaden the inquiry and see what can be done to lawfully remove this disaster from the legal and political stages. To do anything else asks the American public to embrace the delusion of “rule of law” all the while the lazy legal profession refuses to investigate one of their own and protect this Constitution.
If the US Attorneys and legal profession are not willing to work with Congress to contain this disaster, the States are fully prepared to act. Three states have already positioned themselves and remained poised to strike. As the public realizes what has happened, even the RNC-controlled states could very well move to put their oath and Constitution before their reckless devotion to faction and illegal conduct.
Congressional Rule Making Power
Article 1 includes the “necessary and proper” clause. This is a broad power which the Congress can use to invoke all rules and laws such as FISA.
When it comes to ministerial duties such as FISA, the Executive is nothing more than a clerk. He is to follow the law. This executive did not refuse FISA.
Cheney and Addington have invoked the “implied power” of Congress-doctrine, to argue for a similar “implied power” for the Executive. This is fiction. What’s absurd is that after invoking this fabricated power for the Executive, Addington and the Vice President then ignored this Congressional power, defied FISA, and essentially argued that what the Constitution said in Article I, “actually” exists in Article II. This is an illegal changes to the Constitution and cannot stand.
The framers clearly gave Congress the power to make rules; and if the President refuses to follow those rules –- even before they become law, and the President invokes a veto – Congress still has the power to impose their will on the Executive and override the Executive Veto. The framers intended the Congress to be able to require the President to mow the Capitol lawn; and if the President refuses to cut the lawn, the Congress could impeach him for failing to do what is clearly a ministerial requirement: Get on his hands and grovel on the lawn of Congress. If Congress is serious about the “abuses” this Executive has committed, they could easily close ranks, join as one body, and pass a law so stating: This Executive shall be personally required to mow the lawn of Congress, and if he fails, he shall have committed a felony and high crime. This Executive might claim that no such law could be passed. But it is clear that if Congress is serious about protecting itself, it could pass all sorts of Ministerial duties on this clerk in the White House simply to remind the clerk that he is nothing more than a clerk.
The issue is that this Congress, despite its public protests over concerns with the Executive abuses, is not willing to do so. Where they say there has been an attack, they refuse to join forces, pass a law mandating that this Executive Get on his hands and knees and daily bow to Congress as he cuts the grass. This Congress, if it was serious about protecting the Constitution, could override the President’s veto, and impose this ministerial duty on this clerk in the White House, and compel him to grovel. They refuse to do so, and we can only conclude that they are not serious about their constitutional obligations under 5 USC 3331 to protect this document.
It is time to treat the clerk in the White House as he should be treated: Like a dog. If Congress is serous about their oath, they could easily pass laws which impose specific duties on this President to assent to the power of Congress. It is time for Congress, if they are serious about their oath, to impose a long list of ministerial duties that are exhausting, degrading, and completely consistent with how stupid clerks should be treated: Without respect, and with complete disdain.
It is time Americans realize that this Congress, if it was serious about its role in protecting this Constitution, refuse to assert their power. Senator Specter claims he wants to find out about the NSA; and was “upset” that Admiral Hayden was appointed to the CIA; yet, Specter refuses to subpoena the telephone companies.
This Congress well knows there is a problem. Their only catalyst for real action is when one of their own are unreasonably abused. Yet, despite the abuse of power with the current FBI raid into Congress, this Congress merely talks about what it might do. It is time to tell the Congress to put up or shut up: If you are serious about doing your job 5 USC 3331, then pass a bill that imposes on the Executive a personal obligation of him to daily cut the grass of Capitol hill; and if he fails, it is a felony; and then remove him from office for this crime of not following the law. Congress has the power to do this: Only ¾ of the members of Congress are needed to override the likely Presidential Veto.
The point is that despite the Congressional leadership’s feigned shock over the unconstitutional raid into Congress, the leadership refuses to exploit their rare agreement and do what they could do: Pass legislation that forces the President into a no-win situation, find that he has committed a felony, and then remove him from office. The issue isn’t the mechanism to do this. The issue is that despite this clear choice, this Congressional leadership refuses to do what could be done to put their oath first and protect the Constitution.
Challenging Addington
It is appropriate to share a list of questions which the public, Members of Congress, and executive staff should have ready when they deal with Addington. Keep in mind, he’s not all that bright. His failure is his inability to listen.
As you interact with Addington probe his assertions with the following questions:
- Why should we believe your version of events
- What other views were expressed
- Why are some views more or less credible
- What the real story on the discussion at the event
- Why is that discussion relevant given what’s expressly in the Constitution to the contrary
- Why should we believe Addington’s retelling of events
- Why should we believe Addington’s version of the case law
- How has Addington vetted this information using opposing views
- How has this historical point been proven
- Why should we believe that a specific assertion Addington makes about the law is true
- What specific language does Addington cite that incorporates the opposing views, or larger arguments which overwhelmingly contradict what he is saying
- Based on the lessons of the Iran-Contra Minority Report, why should we believe Addington’s retelling of history, debate conclusions, precedent or law
As you explore Addington’s writing, you can easily organize your analysis by establishing two broad approaches:
It is quite easy to read a few lines of the Minority Report, then check the case law, citations, and original texts and discover that Addington is living in a fantasy world. There are numerous examples of Addington’s credibility problems when it comes to legal analysis, case citations, and the actual Constitutional Debates.
As you embark on your analysis, keep in mind that Addington deals with absolutes, and he is not open to subtleties or nuances.
Addington’s approach to legal resources, historical documents, information, case law and legal conclusions are highly flawed. He uses a minor hint of an idea or notion, however disconnected it is from the Constitution and law, as a “precedent” to invoke powers which have not been delegated. Despite overwhelming legal precedent in re Lincoln to the Contrary, Addington only focuses on the actions, and ignores the real legal consequences: Lincoln’s actions were illegal.
Addington’s flaw is invoking subsequent discussion on the Constitution which is contrary to Federalist 78. Namely, Federalist 78 clearly states the Supremacy Clause, which is contained in the Constitution itself: That nothing is above the Constitution. Despite the Federalist Papers and Constitution which explicitly state this requirement, Addington’s entire approach is the opposite: To put the law second, and political agendas first.
Addington uses a minor hint of something, however divorced from legal precedent it might be, as a “sufficient” basis to invoke as a “universal maxim,” however perverse the result. The Counsel of Europe can well examine what Addington hopes is never understood: The number of Americans that have been killed in Eastern Europe at the black sites following their illegal kidnapping, warrantless detention, and illegal abuse under the Geneva Conventions.
The American courts, just as Addington would like, have assented to non-sense legal arguments on Rendition, concluding: “There are mistakes.” No, these are war crimes.
Addington’s problem is that despite his attempts to suppress information, he’s failed to ensure that the entire chain of history between 1789 and 2006 was suppressed. That is impossible. Even a stupid blogger can figure this out: The evidence is all around us: The documents are clear; the case law is a real thing in physical space. There is no mystery how we have the results: Addington has twisted the real written text into something that it is not. There is no other explanation.
Addington’s problem is that the only way he can avoid detention of the rest of the allegedly illegal conduct he knows full well is occurring is to claim that history is not relevant; and that we must only look where Addington is looking. Small problem: We can do exactly what Addington has done – explore the documents that some thought would forever remain secret, and openly discuss Addington’s public conduct – the memoranda -- which is disconnected from the texts which remain set in stone.
There is nothing Addington can do to stop this. The only hope Addington has of ending this examination is for him to resign. Until he resigns, the examination will simply tear more at the zipper he hoped would join two disconnected lines of reality. A single zipper, when undone, reveals the ugliness of tyranny which Addington appears to believe nobody can comprehend. A made a poor choice.
Addington has argued that secrecy should be invoked, not to avoid discovery of important things; but to prevent public discussion of the very controversial issues which the delegates wrestled with: What is to be done.
Addington wants it both ways on reality. He wants the power and exclusive right to have access to information which is not his to examine; while at the same time he compels others to suppress information which the public should well know. Those days are coming to an end. Addington invokes secrecy and privilege to avoid what’s needed at all levels: Another set of eyes to challenge his views on Iraq, WMD, Rendition, abuse, and the CIA agent’s name disclosure.
Addington’s fundamental, and well known problem to those who are around him is his credibility problem: He is not scholarly, he is not a credible source of objective legal information, nor is he a definitive source of legal information on what the history of the Constitutional Convention Debates. Those who choose to comprehend the scope of Addington’s reckless disregard for reality, need only review some of the debates on 17 August 1789 language, and contrast it with the text within the Minority Report discussing Article II clerical duties of the Executive. The two are not in the same universe. Addington’s retelling of the events is absurd, disjointed, and wholly at odds with a reasonable interpretation.
The staff well knows that Addington need not be given deference. Addington is not a serious legal scholar nor loyal to the Constitution. His loyalty is to the selective cherry picking of words, not in the love of the law or the desire to ensure power is wielded to preserve the law of the land. Rather, Addington has one goal: To ensure that power is wielded simply for the sake of wielding power, however disconnected it is from treaty obligations, constraints, or other leashes on the bungling clerk in the Oval Office.
The world is well advised to consult other sources on the Constitutional Convention Debates. Others can retell events and the cases in a many wholly at odds with the version Addington would have us believe are “well established.” They are only established in one place: Addington’s insecure mind, incapable of a friendly discussion with those who have a slightly different view of the founding documents. The world should be encouraged to read the Federalist Papers in their entirety, then Contrast them with Addington’s words in the Minority Report. You will quickly see that many, if not all, of the principles that might be asserted to defend against Executive Tyranny are repackaged as something that cannot be done. Yet, the delegates in 1789 clearly wanted to have done to Addington what Addington hopes to avoid: Accountability, and an assent to the law, not agenda or factional designs.
Federalist 10 is clear in that no man is his own judge. Yet, Addington and the signing statements amount to just that: This Executive would ask that we accept his judgment of the law, even when he has no power to judge. Federalist 78 invokes the duty on the judicial branch to compel all men, even the Executive, to assent to th4e Constitution; if they fail, the judiciary is subject to impeachment.
The framers intended that the Executive is not above the law. They saw the law as something applicable to the Executive, and intended to invoke the impeachment to remind the executive: The law applies to you. This Executive can be charged with war crimes for illegally invading Iraq without there being a clear, and imminent threat. It makes no difference whether Congress was or was not manipulated; the issue is that Addington, Cheney, and Bush well knew the deception and conduct was disconnected from evidence and reality.
Signing statements amount to a line-item veto and illegal executive assertion of judicial power. The courts have already struck down line item vetoes. It is time to wade through this maze – as Cheney in 1987 called for, when he asked for fact finding in the Iran-Contra affair -- and similarly declare that these signing statements are not constitutional nor enforceable; and are contrary to public policy. Any one who follows the signing statements, while violating clearly established rights, do not have any credible immunity. Rather, they can be stripped of this. Congress could make a law stating this; or we could do what the lazy American legal system does: require a victim to suffer abuse, then interpedently gather evidence. It is the job of Congress to provide leadership; but if American leaders refuse to do what should be done, the Council of Europe remains ready to gather facts.
Singing statements show a clear intent of the Executive to ignore the law. Addington’s changes to the House budgets amount to an illegal line item veto; nobody in the Executive Branch should believe Addington’s words are any force.
This President does not have any inherent power; rather it is only Congress that has the broad power of making rules. This clerk in the oval office has clear duties, and he has failed to fully inform Congress of the illegal NSA activities, as required under Title 50.
As you make your budget submittals to Addington, keep in mind your oath of office: Put Addington’s name on the budget documents, and include the key quotes from the Federalist papers showing Addington’s comments about abuse, torture, and rendition are illegal. Find Addington’s picture, and draw a big red-X through it.
Addington is a coffee, errand boy for the clerk in the oval office. Invoke the Oscar Meyer Weiner Tune: “My coffee boy has a first name it’s D-A-V-I-D. My Coffee boy has a second name it’s S-T-U-P-I-D.
It’s useful to consider the way that Addington approaches case law, precedent, and how these principles are invoked to justify action, or avoid consequences for illegal conduct.
Here are Addington’s Rules [Why his approach to law is flawed; what can be done to remedy this problem.]
Favorable cases are invoked to expand power; unfavorable cases are ignored, distinguished, and narrowed. [This is a stretch, and does not indemnify those who violate the law. Qualified immunity can be stripped when the rights are clearly established.]
Rules which expand power are broadly applied; those rules which trump executive power are explained away. [This is illegal; ministerial duties imposed on the executive are lawful. An oath is a promise to do something that restrains the absolute use of power. 42 USC 1983 can be invoked against agents who violate clearly established rights.]
Rules which clash with the Federalist Papers are still invoked; those who assert the Federalist Papers (showing Addington is stupid) face no credible public debate. [This is a one-side argument, and fails to subject a policy to judicial review, with an independent fact finder and an adversarial opponent. This is called “litigation” and something which Addington is not very good at.]
Broad rules may (illegally) violate the clearly established rights Constitution, so long as the courts and Congress can be induced to do nothing, not discover, or get blamed for not doing something. [This is illegal and can be remedied with litigation.]
Broad rules may (illegally) violate the superior documents, so long as those documents are (absurdly) labeled inapplicable. [This contradicts Federalist 78, and the supremacy clause; and the oath of office, 5 USC 3331. People can be fired, impeached, or lawfully targeted for Rendition to The Hague.]
Restrictive rules prohibiting action are (unilaterally) rewritten using invented words and fabricated exceptions which effectively abrogate the treaties, statutes, and Constitution. [This is illegal abrogation of law. War criminals can be tried before The Hague.]
Others can be blamed for not doing something; when they do what we asked them to do, we can then say they didn’t have the power to do it. [This is why Cheney is still shaken by the hunting accident: He’s not very smart, just a jerk. Secret Grand Jury evidence can fatally damage a Vice President’s political future.]
Minor hints of advantage can be stretched to justify trumping all others. [This absurdly stretches a narrow case to a broader rule; in doing so the conduct violates the law. There are lawful methods to quickly monitor, constrain, and punish those who engage in abuse.]
Minor rules from a narrow case can be stretched to apply abroad. [This is a judicial power, which is not within the power of the President to rely on as case law or a legal foundation; this is illegal when it contradicts explicitly treaty obligations such as NPT or Geneva. Those who violate the law may face lawful reciprocation.]
What we get away with overseas may be invoked at home, even if we are detected. [This illegally presumes that power – which is not stopped abroad – can be invoked at home against Americans, in violation of the Bill of Rights. Those who refuse to put the Constitution first, shall be put second.]
We do not have to reconcile our new rules with our legal requirements to the contrary. [This unlawfully [a] invokes “Jefferson’s higher rules above the law” which contradict the Constitution and separation of power; and [b] invalidates Federalist 78 which compels all things to be subordinate to the Constitution -- anything above the Constitution is void. There are methods which can be used to discover and quickly remedy this abuse of power.]
A hint of anything from the Constitutional Convention Debates, even if never formally invoked in the Constitution, is asserted to be a power, even if that power has not been delegated. [This contradicts the express delegation clauses in Article 1 Section 8 which are exclusive to Congress, not something the Executive can assert or usurp. This is called a “separation” of powers. We can further “separate” those powers which the Executive is abusing, and transfer them elsewhere.]
Although powers have not bee delegated, we can assert powers so long as nobody stops us. [This contradicts the maxim, which failed and triggered the Bill of Rights: “We need not make a rule against something when they have no power to do it. Federalist 78 reminds us that power cannot trump the Constitution. It is possible to create lawful mechanisms which swiftly remedy these violations.]
It’s useful to look at how we got where we are.
Comprehending where Addington and Cheney have diverged from reality
Addington’s primary objective has been to push against Congressional oversight. He has no intention of being constrained by treaty or international obligations.
Addington does not well comprehend the external requirements that mandate power assent to a boundary or a limit. Although for the time being they believe they have created a bubble, apparently immune to accountability, they fail to comprehend the degree to which they have been lawfully penetrated by those whose loyalty is to the Constitution, not to any person. They are incapable of neutralizing this formidable foe: It lurks closely, but is in many locations at the same time. They cannot pinpoint it. It troubles them. Their inability to stop it shows they are not as powerful as they believe or wish others to imagine. They are fearful others will comprehend their limits, which are well known, and shared.
After the Soviet Union was removed (for the time being) as a credible challenge to the United States, Addington removed the Congress and courts from the domestic checks on power. Addington and Cheney have pointed to all international and domestic challenges to decisions and powers as an excuse to target, as they did with Congress: Neutralize, expose, smear, and intimidate without regard to precedence, requirements, constitutional rights, or law. In doing so, he has lawfully exposed himself to lawful targeting, and reciprocation: He can no longer be sure his continued income streams will continue as his Bar Certification is now in question. If he refuses to cooperate with the deepening and broadening investigation, he could face other sanctions.
He’s being permitted to cross more boundaries and violate more laws. Although he’s freely choosing to believe nobody notices, it is well known. He believes he can do what he wants, but he knows his political future is defined, not infinite. Others well-comprehend the abuse, but are unwavering -- it will soon lawfully end. Where he chooses to exceed the law, he may or may not have confidence others will stop him; rather, they may assent to lawlessness because they have been given permission to appear to be a conspirator, but their hidden loyalty is to the Constitution.
Where Addington believes there are no checks or limits, the results speak for themselves: War crimes, abuse, and conduct wholly at odds with what we should expect of highly trained professionals. He is incompetent, and recklessly so: He refuses to consider other views, and he looks at the world through the lens of power without regard to the boundaries. People have the inherent right to be free of abuse, especially from those who pretend they are of the cloth. It is absurd to invoke a principle of “the Constitution” to protect a right, when there is no intent to protect the Constitution itself.
He has a major problem: He does not comprehend his imminent, lawful defeat--A sign of his stupidity.
Better Understanding the Vice President and Addington in 2006
Bruce Fein in 1987 was a staffer with Addington on the Intelligence Committee. Given Fein’s interest in the Downing Street Memo and discussing issues with Conyers, recommend Congress seek Fein’s views on the internal discussions related to the 1987 Minority Report; may shed more light on the thinking behind what is going on now in the Vice President’s office in re “implied power” and “we can do what we want”-thinking. If Cheney in 2005-6 wants to invoke the Minority Report as a “must reading”, then let’s have the full spectrum of people involved to find out “the rest of the story.”
This section includes links to other blog content which may be interesting to review, and understand the context of the wider assumptions.
References to Other Blogs and Information
FY06 Intelligence Bill Analysis
Minority Report Discussions [Several]
Addington Disbarment Project
Reasonable Answers to House Judiciary Question
HAS Hearing Archive
This section outlines the large gap within Addington’s legal arguments.
Recommendation We encourage Members of Congress to consult private counsel who have recognized, scholarly experience in Military Law. The problem Addington has is that he’s approached domestic issues from a foreign policy perspective; his legal weakness is his failure to adequately embrace the Military Law issues, and the Constitutional restrained on power which the Anti-Federalist had incorporated into the first 10 Amendments.
Addington Ignores Military Law Review Fatal Attack on Law of Necessity
Central to our understanding of the weaknesses of Addington’s legal arguments is an understanding of the Judge Advocate General [JAG] and the professional literature they have which directly undermines Addington’s legal arguments and assumptions.
Key words: “Law of necessity”
By way of example, two Military Law Review articles published in 1986/8 [close to when Addington crafted the Minority Report in 1987] well illustrate the issues which Addington ignored: The Lincoln problem.
Here are the links for the two sample Military Law Review; please take the time right now to read the specific links and the single footnote listed. They are stunning in the context of the NSA program: They fatally destroy Addington’s legal arguments on the legal authority of the Presidential activities; and warrant widespread discussion within your committee.
Here is where the key, fatal footnote will be included for your ready reference.
Also keep in mind the notion of Jefferson and the “law of necessity”. The point is that this notion is not well discussed publicly in the context of the NSA, and Addington’s views on Geneva.
Explanation
For the moment, let’s depart from the Iran-Contra Minority Report, and focus on a key issue we recommend you keep in the back of your mind as you review the issues related to the illegal NSA domestic activities, and other briefings you and your staff receive in re other Presidential Programs.
Key point: The Federalist Papers contradict Addington’s legal foundation and defense.
Federalist Papers: Highlighting Limits to Presidential Power
Addington’s major problem is his selective citation of documents. This can be easily remedied during your classified briefings. You are free to prepare and have at your disposal any ready list of documents, checklists and questions. For example, by way of reference, here is a quick list of the Federalist Papers which Addington fails to adequately incorporate on the well understood limits to Executive Power : 7-10; 33; 37-51; 78-85. Again, these are the core Federalist papers which directly impose limits on Presidential power; and it is appropriate the DOJ and Executive Branch staffers be mindful, and is constantly reminded, of these real limits.
We recommend these types of questions be widely circulated through the legal community for comment, and make it clear that we expect straight answers, not the same song and dance we’ve been given. The responses should be answerable in a non-classified setting. The public can well discuss the questions, even through we may be locked out of the classified briefings. We can make adverse inferences. We recommend the questions related to the Federalist Papers be well circulated among the committee members, and that Staffers well incorporate in their talking papers these issues. When the briefers or witnesses appear, simply grind them down with these questions. They have no credible answers because their original programs were crafted and implemented without consideration for the Constitutional limits on Presidential power in the First 10 Amendments.
We recommend the most important, {10, 14, 37, 39, 45, 49, 51, 78, 84 [Editor Ralf Ketcham, p. 226 Chapter: “Preventing Tyranny Under the Constitution” Anti-Federalist Papers and Constitutional Convention Debates; 1986]} be independently reviewed, and available in paper format in a special “briefing support binder”. This binder will be for Members of Congress for ready reference as they review any classified briefings related to any Presidential programs, the NSA domestic activity, or any information from Addington.
Also, we recommend including references to the Federalist Papers within the budget documents and descriptive summaries Congressional staffers provide references. Addington well marks up the documents; then by all means include in the various budget stub items the direct Federalist Paper citations which Addington refuses to embrace. You will the be able to take the documents that he’s reviewed, and no doubt lined through, to make it clear to the Grand Jury that he’s full aware of the information, but refuses to assent to the full Presidential limits as well articulated by the Founders.
There is nothing within the budget documents themselves that prohibit members of Congress from including in the Budget and other documents these citations. Perhaps Members of Congress may wish to include in their FOIA requests a generic list of Federalist Paper Citations; or include key quotes in their Member of Congress letter head that directly highlight the Federalist Paper citations which Addington seems incapable of comprehending, understanding, or reading.
We shall throughout this discussion drive home the single point: Executive Power cannot be unilaterally asserted; and there remain well discussed limits to Executive Power which the Federalist Papers and Constitutional Convention Debates well articulated and remain fully enshrined in our existing Constitution.
3rd Amendment Further Destroys Addington’s Assumptions
Addington’s problem is that he’s consistently asserted and cited only the favorable case law which asserts unbridled Presidential power. This is a selective reading the Constitutional Convention debates.
By way of example, there is a specific Amendment which Addington refuses to discuss which explicitly [a] limits Presidential power in wartime; [b] creates a precedent for distinguishing between peace and war; and [c] clearly shows that the Framers intended there to be a specific limit on Presidential power when it comes to domestic affairs and civilian interaction with the military.
Take a careful look at the words in the 3rd Amendment. Note that there is a limitation on how troops are to be quartered; and whether the troops can or cannot be house in the public. Also notice the second half of the 3rd Amendment: Congress has the power to make rules which, during war time, affect/limit/impact what the President can do.
Philosophically, let’s take a broad view of Addington’s approach to the Constitution: He broadly expands the generic “rules” from case law; while the limits on power are narrowly tailored to a specific, isolated situation. Addington cannot have it both ways: If he wants to universally apply “the rule” of expansive power; then he also has to embrace the contrary rules which broadly apply rules of “limits on Presidential power.”
In the case of the 3rd Amendment, applying Addington’s notion of “broadly apply the rule,” Members of Congress should invoke the 3rd Amendment (as does Addington) as “clear” and “unequivocal” and “well established” intent of the Framers to explicitly constrain the Executive during war time when it comes to civilian-military relations. The point should not be lost: If Addington wants to play the game of “I will broadly interpret the history of humanity in a favorable way,” then so too shall the public, media, and Members of Congress reciprocate on Addington.
Thus, we arrive at the following “rule” which is well linked with clearly established intent in the Constitutional debates, in re the 3rd Amendment:
Constant’s Rule of Limited Presidential Power When Interacting With American Civilians Domestically
The framers intended that, even during wartime, Congress may, can, and shall make laws that limit, constrain, and blocks how the President can use military power; what he can do with the military; and how he can use the military forces, technology and other supporting equipment when it comes to how they relate to civilians. This is wholly consistent with the well established doctrine of constrained, limited, and bridles Presidential authority during wartime.
In short, what needs to happen is a complete destruction of the Iran-Contra Minority Report; and a full assertion of Constitutional powers of We the People to make it clear:
Let’s capture the problem Addington has in re Federalist 78. Addington would have us believe, contrary to Federalist 78, that the Constitution is not supreme, and that the President may do something that the Constitution forbids. Addington also appears to favor secrecy, not to protect a bonafide/legal program, but to avoid detection of illegal activity.
It remains to be understood tow hat extent the Judicial Appointments have nurtured a bizarre endorsement of, “Since we nominate you, you may do what you like.” Federal judges who put “something other than the law” as their guiding principle need to be impeached for failing to assert their Federalist 78 duties.
Here’s what Addington has done:
The result: Executive power (incorrectly argued to be something Congress cannot constrain) trampled on clearly established, domestic rights; privilege invoked to avoid detection, knowledge, and consequences; and unreasonably invoked “state privilege” to hide individual misconduct, something state privilege does not and cannot do.
The issue is: What is to be done to ensure this does not happen again, despite what we supposedly learned after Iran-Contra.
Addington’s Weaknesses
Advisors are not litigators. When understanding Addington, there is one key thing to notice: He’s not a litigator, he’s a policy advisor. The two are completely different. He hasn’t entered the court with the hopes of prevailing. As you review the NSA FISA issues, keep in mind Addington’s role in the Sept 2002 FISA court. He never spoke; he was only there as a supporting staff member to Olson. That is key.
Adversarial out of court. Another of Addington’s major weaknesses is his inability to survive an open, well crated adversarial view. He relies on secrecy not to protect secrets, but to avoid discovery of his defective legal argument; and then avoid a clash with the very case law in the Judge Advocate General that he’s sidelined.
Dubious. His legal arguments cannot survive a generic clash with even a poorly trained adversary. This is important to understand for purposes of evaluating whether the legal arguments are credibly linked with a bonafide secret; or (as is most often than not) a desire to insulate the poorly grounded legal argument from a credible clash in the adversarial system.
Example. Recall also the important revelation about Addington’s direction to the staff members when it was possible that the FISA court would learn of the illegal activity when they asked about the source of the information. Addington’s approach wasn’t one to openly argue the legal merits of the program; rather, Addington did the opposite: He was willing to let the case die in order to avoid the Court challenging or discovering what Addington hoped to avoid the FISA court discovering: The full scope of the illegal activity.
Military Law Review. What Addington avoids is the very area you want to focus on: The “law of necessity” and how this “law of necessity” has been struck down as a legal foundation in the very situations Addington has offered as a justification for the NSA illegal activity: Lincoln. Suffice it to say, when you review the Military Law Review articles related to the law of necessity, you’ll quickly enter an arena where Addington’s apparent invincibility evaporates. He’s leaned on Lincoln as his justification; yet, by attaching his legal argument to Lincoln he’s opened the door to the adversarial position well discussed in the Military Law Review. Lincoln had no authority to violate the law; it remains up to powers and forces outside the Executive whether he is indemnified. Addington’s arguments are not a credible assertion of Executive power; rather, they are merely a political argument to induce Congress to indemnify the President for actions Addington well knows are illegal.
A driving motivation can be a fatal motivation. Think of Addington’s major motivation: To justify the assertion of Presidential power worldwide. His first forum was to argue against Congress. He’s done this abroad. Where Addington could not win the legal arguments based on facts, he supposedly counseled Libby that it was “OK” to discuss the CIA agent name. Addington used the NSA-intercepts to do an end run in Iraq. In a broad sense what Addington and Cheney have done is invoked the one-sided view of Presidential power abroad; then used that momentum domestically. This is analogous to the Minority Report being invoked for the PNAC agenda; then having the PNAC foreign agenda imposed on the domestic agenda. The problem is that Addington, after the Berlin Wall Fell, no longer faced a check by the Soviet Union; having defeated Congressional oversight, Addington, Cheney, and Gonzalez surveyed the political landscape: They defeated all the opposition. Hence, they walked into a trap in Iraq; and they violated the Constitution domestically, invoking the “big scary story” to invoke secrecy.
The Downing Street Memo and pre-Iran invasion is instructive. By failing to expose their policies to opposing views, they’ve asserted power in ways that are not only illegal, but are wholly at odds with the very case law and Federalist Papers they’ve invoked to justify the original abuses. Their only option is to violate the law to avoid detection; invoke (absurdly) “state privilege” to thwart detection of individual illegal acts (which, like ORCON is not a bonafide invocation of privilege); and invoke non-official documents (such as Jefferson’s writings in 1808) as a “legal justification” for things which Hitler well invoked: The law of necessity, even when there was no emergency or bonafide basis to justify ignoring the law.
The K-case last paragraph summarily destroys Addington’s legal arguments on all fronts, showing how Addington departed from his oath to the Constitution, and remains loyal to the doctrine of Executive tyranny. This is not lawful.
Another key case in the “no implied power”-case. Simply keep this in mind as you read the notes below. There is no bonafide claim that the President has any implied or inherent authority. Rather, the President simply has delegated powers; and the Constitution in (as an example) the 3rd Amendment explicitly limits this power related to the domestic use of military power.
It is legal fiction (as is the term “enemy combatant”, it should be “belligerent”)to invoke the notion of “implied power” or “inherent authority”. This is propaganda. They’ve simply repeated legal fiction. The Constitution does not “imply” anything: Power is either delegated, or it is not. Where power is not delegated, it is reserved to the States and the People, respectively [10th Amendment].
The Federalist papers also explicitly state that the powers delegated to the Federal Government are few and specific, not broad, implied, or inherent. [Check Federalist 34]
Let’s return to the Iran-Contra Minority Report . . .
Case law
Here is a quick review of the cited case law. The purpose of this
review it to simply cite the cases.
Contrast and compare these with the cases listed in the DoJ Memoranda
To Congress after the NSA revelations in the NYT. Do you see any patterns?
Also note how the case law in the DoJ documents of 2005-6 contrast with
the way the cases were cited in the 1987 Minority Report.
[Check back: These citations will, where available, be linked so you can read the full case, and see where Addington’s legal arguments diverge from established case law.]
Ch: Chapter
N: Note
Ch 2, N3: Myers V. United States 272 US 52. 292 (1926)
Ch 3, N1: US v. Curtiss-Wright Export Corp. 299 US 304, 319-20 (1936)
Ch 4, N1: field v. Clark 143 US 649, 691 (1892)
Ch 4, N2: Youngstown 343 US 579 (1952)
Ch 4, N4: Dames & Moore v. Regan 453 US 654
Ch 4, N6: Citing US v. Curtiss-Wright Export Corp. 299 US 304 (1936)
Ch 4, N7; Panama Refining Co. V. Ryan 293 US 388 (1935)
Ch 4, N7: Schechter Poultry Corp v. US 2295 US 495 (1935)
Ch 4, N7: Carter v. Carter Coal Co. 298 US 238 (1936)
Ch 4, N8: 293 US at 422
Ch 4, N9: Durand v. Hollins 8 ed. Cas. 111, 112 (CCSDNY 1860) (No.4, 186)
Ch 4, N11, 11 Cranch 137, 165-66 (1803)
Ch 4, N15, Negle 135 1, 58, 64 (1890)
Ch 4, N19, US v. Gratio 39 US (14 Pet.) 526 (1840
Ch 4, N19, Answander v. TVA 297 US 288 (35-40 (1936)
Ch 4, N20 Frost Trucking Co. V. Railroad Commission 271 US 583 (1925)
Ch 4, N21 INS v. Chadha 462 US 919 (1983)
Cb 4, N23 Brown V. Califano 627 . 2d 1221 (1980)
Ch 4, N24 Swaim v. US 28 Ct. Cl. 173, 221 (1893)
Ch 4, N26 Anderson v. Dunn 6 Wheat. 204, 225-26 (1821)
Ch 4, N28 Kilbourn v. Thomson 103 US 168 (1881) ["read the power narrowly"]
Ch 4, N28 McGrain V. Dougherty 273 USC 135 (1927) ["read Kilbourn narrowly"]
Ch 4, N28 Sinclair V. US 279 US 263 (1929) ["read Kilbourn narrowly"]
Ch 4, N28 Watkins v. US 354 US 178 (1957)
Ch 4, N28 Bareblatt V. US 360 US 10 (1959)
Ch 4, N32 US v. Nixon 418 US 683, 703 (1974)
Ch 4, N33 Sibbach v. Wilson 312 US 1 (1941)
Ch 4, N33 INS v. Chadha 462 US at 935, n. 9
Ch 4, N34 INS v. Chadha, 462 US at 951 (1983)
Likely Duke University Text
Chapter 2, Note 18 Narthan Tarcov. "The federalists and Anti-federalists on foreign affairs," 14 Teaching Political Science: Politics in Perspective 38 (fall, 1986)
Contrary federalist citations
Chapter 2, note 19 Notice closely how federalist 45-47 (calling for separate powers) and recognized by federalist 78 (calling judicial review of illegal conduct) is ignored, and federalist 42 is invoked to justify ignoring the absolute separation of power.
Notice focus on foreign affairs in the Minority Report
- fails to capture Military Law Review
- Chapter 3 notes: Notice the many notes cited related to material passed after the federalist papers, and invoking these as guiding language [Not relying on case law]
Chapter 2, Note 28: Glen E. Thurow, "Presidential Discretion in foreign affairs,"
7 Vanderbilt J. Of Int'l. L. 71, 75 (1973)
Language in Cited Cases
This section includes a discussion of the case law language contained in the Minority Report which is at odds with the full arguments related to the NSA domestic activities.
Principles invoked
We judge the real source of the case law language is the doctrine of "military necessity" which can only be invoked when there is a bonafide emergency.
Despite Cheney-Addington assertions that various principles and court conclusions are "final" or "well grounded," a plain reading of the Military Law Review from 1986-8 clearly shows the opposite.
Recall, the Iran Contra Report was written in the 1987 time frame, and Addington likely consulted with case law which related to the military.
Surprisingly, in 1988, one year after the Addington-Cheney report was submitted, you can find a damaging Military Law Review report which wholly contradicts the sweeping assertions Addington, Gonzalez, and the DoJ-NSA-CIA attorneys have asserted in re the NSA domestic activities.
for example, when asserting in the Minority Report that the precedents of Lincoln provide a legal justification for sweeping exercise of Executive power, the legal record suggests the opposite.
One case is the K-case which
Also, the Military Law Review from 1988 clearly cites language which wholly destroys any confidence that Lincoln could do this.
In short, the language in the cited case law, treatises, and the notes in the Military Law review directly contradict the wider perceptions on what the President can or cannot do.
Not carefully that the cited case law, notes, and military law review journals explicitly state that the President does not, repeat, does not have any implied power to violate the law. Rather, if he chooses to deviate from the law, he is subject to Congressional oversight, sanctions, and wholly does not have any bonafide claim of immunity, privilege, or other insulation.
Moreover, it is absurd, frivolous, and unsupportable for Addington and the Vice President to assert that the President, in denying the public the important information related to the domestic activity is exercising any lawful power. Rather, the Military Law Reviews, case law and notes explicitly reject this notion, and find that the president individually can be held liable for these unlawful acts.
No where can Addington and Cheney rely on any statute, case law, or military journal that credibly supports the their current contentions that the President has discretion.
Rather, a close reading of the Iran-Contra report clearly stipulates that the Congress has a role in oversight; and that the Congress has an important constitutional duty so far as appropriations.
What this Vice President and his Chief of Staff have done is reject all the Judge Advocate General case law and well known military reviews which contradict their assertions. Moreover, it is well known that Addington specifically blocked in 2002 Mr. Gordon's attempts to provide information related to the unlawful treatment of prisoners.
The Geneva Convention under Article 3 and Articles 83, explicitly impose on the detaining power a responsibility to ensure that the laws of war programs were enforced, and that belligerents were protected. Addington and the Vice President have unlawfully created new changes to Geneva, and introduced fictional terms of "unlawful combatant." It is well known in the JAG's office that these terms are not real; and there is no lawful precedent to justify a unilateral abrogation then amendment to the Geneva Conventions. At not time has Addington or the Vice President presented to the Senate any changes to Geneva; rather, the last changes (Protocols I, and II) to Geneva were explicitly rejected.
There is no legal foundation for Addington to both describe Geneva as "quaint" while at the same time modifying the treaty without Senate ratification of those changes. These are unlawful changes to the Amendment and Treaty process and form the basis to expand the inquiry into Addington's alleged fraudulent conduct which circumvented the Senate Ratification process: Corruptly persuading others to ignore clearly promulgated Constitutional processes to ensure the Senate was fully involved with the proposed changes to Geneva. At no time were the terms "unlawful combatant" introduced; nor did the Senate ratify these changes; rather, Addington and Cheney unilaterally ignored the clearly promulgated Article 83 and Article 3 requirements that all belligerents, regardless their status, are to be treated humanely.
It is merely a matter of splitting hairs as to whether the proposed plan of treatment caused grave, superficial, or extreme harm. The Conventions do not permit, and it is illegal, to plan to cause any harm distress or discomfort to detainees. That the court may have ruled that the treatment was acceptable; or that Congress may have assented to a lesser standard by no means lawfully
abrogates the existing terms of Geneva.
Rather, because Congress and the courts have assented to the unlawful abrogation of the Geneva, they too are similarly exposed and may lawfully investigated for alleged involvement in the unlawful treatment of prisoners.
Senator Hatch and others have explicitly argued that the Congress was fully briefed. This is a fatal admission in that no attorney can unilaterally ask for, nor demand, Congress and the courts assent to a standard of care which is below the Constitution and laws of the land. Rather, because Congress still has an independent duty to investigate and gather facts (which they have not done), the Congress and the Courts may lawfully be reviewed for purposes of their failure to assert their oath to the Constitution.
Again, it makes no difference that the courts may have been deceived, or that Congress was not fully informed. Rather, the issue is that Addington and Cheney have organized an effort to keep both the courts and the Congress in the dark about the full range of illegal activities; and all three branches of government and their individual agents have collectively failed to assert their oaths of office.
One does not ratify illegal conduct through silent assent. Rather, the assent merely confirms that the individual actors in all three branches have collectively assented to a lesser standard that they knew, or should have known, was wholly inconsistent with the Constitution, laws of the land, an clearly promulgated Geneva Conventions. They have no power to indemnify violations of international obligations. The world can comprehend what is or is not happening.
Congress does not have the power, but for changes in Article V or through a Treaty revocation or renegotiation, to adjust the terms of the Geneva Convention or otherwise ignore the Article 3 and Article 83 requirements on all legal officers, Members of Congress, officers, of the Court, and Executive branch personnel to fully enforce, protect, and ensure are followed.
Going forward
What is needed is a broad recognition of what has happened.
At no time have Addington or the Vice President credibly argued at any time that the US Constitution may be abrogated; rather in the Minority Report the two explicitly confirm that Congress has a role
The point is that they would have a different standard when it comes to the NSA issues; and it remains up to Addington and the Vice President to explain their states of mind when it comes to the NSA and CIA-name-revelation issues.
At this juncture, it is clear that Congress has been denied full information; there are clear statutory requirements which Cheney called for Congress to Create (which was done in 1978 FISA); and this Vice President and his Chief of Staff would have us embrace two standards on the rule of law:
What's happened
Addington and the Vice President selectively twisted the case law in re the Minority Report.
After the Iran-Contra Minority Report was drafted, and Subsequent to the Military Law review articles in 1988, the Judge Advocate Generals were well versed on the laws of war and military necessity.
Addington shut their views out of direct input to the Services, and relied on the Secretaries of the Services to rely on the final word of the General Counsel of each service.
It appears based on the 2002 conversation between Gordon and Addington, the JAGS have well documented their concerns, and these were first rejected, then summarily ignored despite the Conventions.
Subsequent to DoJ review, the initial decisions to ignore Geneva were revoked; but this did not address the pattern of conduct set in motion.
Rather, Gonzalez and Addington and others spring boarded off the absurd legal interpretations of the Minority Report, then invoked the principle of "military necessity," all the while knowing that the full case law was completely inconsistent with their contentions. Namely: Nothing in the case law fully supported their contentions.
Rather, it appears Addington and others in the Executive Branch corruptly used their legal position and standing to induce others to assent to a standard of conduct wholly at odds with the case law, clearly promulgated 5100.77 laws of war program, and other wise
use their legal positions to browbeat all opposition.
We judge they have failed to effectively demonstrate they are using their legal skills to protect the Constitution; rather they are using their legal positions to effectively silence those who have well placed and valid legal arguments to the contrary.
It remains to be understood to what extent the legal opinions of opposing counsel might have thwarted their efforts. It is our view that the FISA-secrecy process has been abused; and that the adversarial system has been compromised.
What's needed is an effort to assess how the FISA-court process can credibly work when there is no credible adversary invoking the full case law citations which Addington and Gonzalez have clearly ignored.
The current process puts too much weight on the FISA court judges to independently challenge the government before the FISA court. What's needed is a better way for the FISA court to hear the full spectrum of legal arguments above and beyond the governments.
Also, Congress needs to be in a position to interpedently ask questions based on the full case law which Addington and Gonzalez have cited. Legal scholars need to be prepared to support the broader analysis of the full case law which Addington and Cheney invoked in the Minority Report; and then carefully explore the full range of legal issues and questions which Addington and Cheney ignored in the Minority Report.
Bluntly, Congress needs support in that it needs a method to glean through the full case law citations, and then be provided a set of questions and points to raise based on the full case law of the Minority Report; then take those questions and apply them to the NSA-FISA issue. It is our view that the heart of the Congressional analysis should focus squarely on the issues of "law of necessity" and the legal doctrines in the K-Case which wholly undermine Gonzalez' contention before the 06 Feb 2006 Senate Judiciary.
Bluntly, Gonzalez appears to have invoked the very rejected notion of "military necessity" across the entire spectrum of federal case law, statutes, Constitution, and treaties, to (in his mind) justify ignoring the FISA reporting requirement.
In so doing, Gonzalez has effectively (illegally) trumped all case law cited in the adverse Military Law Review by (absurdly) invoking the doctrines of military necessity, which the courts have summarily rejected as a basis to trump either the Constitution, statutes, or Treaties.
Rather, Gonzalez, Addington, and the Vice President along with their other alleged co-conspirators have invoked the Jeffersonian notion, as they did with the Iran-Contra Minority Report, of asserting that there are situations where the law is "not adequate" and there are higher duties than the law. Again, these contentions have been explicitly rejected when it comes to domestic issues.
It does not matter how Addington, Gonzalez, and the Vice President may view the applicability of the statutes in the context of "law necessity" when the conditions, that might otherwise support that "law of necessity," are not present.
In this situation, although the events of 2001 may have immediately brought a necessary emergency requiring the President to do or not do something, it is without any legal foundation for him to wait five years to review with Congress the matters related to domestic activities which violate the Constitution.
Moreover, Military Case law explicitly rejected in the 1988 journals the very notion that the Executive may do what he wants. Again, Lincoln may or may not have done something; he still remained subject to the law, and his actions do not ratify the conduct, nor set any precedent for privilege or immunity.
Rather, Lincoln’s conduct, regardless his intent, was still illegal; and note that this contradicts Hayden, Gonzalez, Addington, and the President’s open assertions to the contrary.
Thus, but invoking Lincoln's wiretapping as a justification to ignore the FISA simply asks us to ignore the well grounded case law which explicitly recognized that Lincolns conduct was unlawful.
Again, the issue is simply as with the Iran-Contra situation, Addington, Gonzalez, and the Vice President have agreed to rely on a very selective twisting of the case law. Rather than use this selective reading to justify actions at odds with the statutes governing foreign options (as was done in Iran-Contra), Addington, Gonzalez, and the Vice President has committed a longer set of violations:
Let's compare
You'll quickly see the Minority Report invokes several principles which sound nice, but were summarily rejected when it came to the issue of domestic affairs.
Said another way: The Minority Report is essentially a series of absurd legal argument to justify certain conditions and actions abroad. Putting aside the legal theory, the key is to notice one thing: That the Minority Report is about foreign actions.
The problem Addington, Gonzalez, and Cheney have is when they invoke the Minority report-like arguments (which relate to foreign operations) and attempt to apply them to the domestic activities, they have a problem: They enter the realm of case law that explicitly rejects discretion, increases the oversight requirements, and mandates that domestic laws apply.
Overall Cheney, Addington, and Gonzalaz have simply argued for the Jeffersonian principle of "law of necessity" without there being a fair showing that there was a bonafide emergency; and they exceeded a reasonable amount of time in bringing both the Congress and Courts into the nexus.
Moreover, the other problem is that by admonishing in 1987 Congress for not having a specific Policy, Cheney is 2006 is caught in the trap: He's now arguing that, unlike what he argued for in 1987 (that there be a specific policy, therefore leaking that policy Congress was at fault), that because there was
a specific policy, Congress is at fault for imposing it.
Again, the broad issue is that Cheney would have us believe that both sets of arguments can exist. Either
Either way, Addington, Cheney, and Gonzalez have hitched their wagon to horses on the other side of the river. They have absurdly attempted to go up the river, while they would have us believe that their wagon is on the right side of the law, necessity, and prudence. This is impossible.
The bottom line is that Addington well knows he's been selectively arguing the case law incorrectly; and that he's asking us to embrace absurd implications. These conclusions are not lawful, and contrary to his obligations as a legal counsel to remove himself from activities which he knew, or should know, is not lawful.
Here's what's needed
law of necessity; it will be important to recognize which Military Law Review articles the JAGs had consulted that directly contradict the case law Addington cited, and appears to have selectively twisted to ignore domestic reporting requirements and other procedures within the existing FISA and classification
regimes.
Rather, as with Lincoln the conduct is not legal, and it remains up to the public and courts to review whether Congress failed to exercise their oversight responsibilities as Cheney said in 1987 they should well do.
We judge the insights were wholly ignored; the IG audit scopes were not appropriately increased; and that the IG's have failed to ensure that their Generally Accepted Government Accounting Standards (mandating increased audit scope) were appropriately incorporated into the "urgent" messages from the IG to the Congress. You will want to review the agency memoranda between Congress and the NSA, CIA, and DOJ related to ORCON and also the classified program office procedures that should have been appropriately subjected to increased audit scope. Despite the requirement to increase audits in the wake of the Iran-Contra affair, it does not appear as though Cheney, Gonzalez, Rice, or Addington took the time to ensure that the National Security Council reviews fully incorporated these known problems; nor that they appropriately increased audit scope. Rather, because of their open disdain for Geneva, FISA, and constitutional responsibilities, it does not appear as though they have well led the agencies in transforming as they might have argued to the voters that they might otherwise provide.
- (1) 1987 Minority report; to
- (2) Congressional increases in audit scope and other messages from the IGs; then
- (3) The subsequent Military Law Review articles after 1988; then
- (4) the agency reports on compliance to the FISA court; and
- (5) the subsequent IG reports to Congress in the wake of 2006; and
- *7) finally square each of the arguments in the original Minority Report with the final arguments Gonzalez and Addington have given Congress in testimony
and also provided in the memoranda.
In short, you will find that the subject matter is not consistently argued; the cases are selectively cited; and that the conclusions are wholly disconnected from the domestic statute requirements where the President is at his low point, per Jackson's third test.
This is well known to Addington, Gonzalez, and Cheney. Your goal should be to create a summary case law lessons for the staffs in EOP, DoD, and DoJ to by pass Addington. In short, he cannot be trusted to credibly cite the case law; and it is reasonable for the individual staffers inside the Executive Branch to seek outside legal assistance. You will want to get some assistance from people who well understand the limits of law of necessity, and understand well administrative and procurement law.
Because of the liability risks, the internal memos from Addington should not be relied on; and you should consult outside counsel to ensure that the full legal issues are incorporated before you proceed. At this juncture, it is apparent Addington, Gonzalez, and Cheney are not on the same page, and it is a waste of time for the staffers to attempt to please all three. You're going to have to get their legal statements in writing; and then be prepared to provide the information to outside counsel for purposes of them reporting the apparent reckless legal advise to the DC bar.
Preferably, you should have the US Attorneys work closely with Congressional counsel to come up with a get-well plan to review Addington's memoranda; and assess to what extent his legal opinions are more than simply defective, but wholly at odds with the requisite legal competence one should expect of a member of the DC bar. Take note of the recent ABA announcement they plan to provide inputs on the signing statements; you are encouraged to provide what anecdotes you can to outside counsel so that they may incorporate these views into the ABA review of the President's signing statements.
You're going to have to ask your personal counsel on your options; and what you need to do to protect your interests. At this point, know that it's going to quickly get very ugly. The information is surfacing very quickly; and things are very dynamic. The RNC is not prepared to handle this.
First, you'll want to look at the full case law cited;
Second, you'll want to review the full argument in the Military Law review which is contrary to what the Vice President and Addington have been asserting on issues of military necessity and domestic activity
Third, you'll want to give members of Congress a list of questions
Fourth, you'll want to give members of Congress a list of likely non-sense answers; and a method to quickly probe to test whether the responses they are getting are legitimate or bonafide
Fifth, Members of Congress will need to have ready access to the full case law that Addington and Gonzalez are citing; they'll need this in a personalized note binder which will not be classified, merely by their side as reference. Your job sill be to ensure that the Members of Congress have ready access to these documents; then also have a quick access to questions and issues related to each particular case so that the Member of Congress can quickly call up the case, look at the full legal opinion, and probe into the other views which substantially destroys Addington's arguments.
Sixth, you'll want to show the Members of Congress where to go to get the full story; which case law to consider; and what information should be available for them to review in the files.
If there is missing information, then the custodial account for that file plan should be able to explain which specific files are missing; when it was last audited; and give you an idea of the range of information that is there, and what might be available if the files were complete.
Seventh, you will want to look for the public information related to this issue. Again, just because the specific activities may be hidden, it doesn’t' mean that everything is secret. Rather, there are open publications showing clearly what is to be reviewed.
For example, in DoD there is a JROC process which has to review the various procedures and options before funding is appropriated. Your job is t look at the overall JROC process and review what JROC would have had to have eliminated as an option (any thing illegal); then reconcile that with what we have: How was an illegally-0perating process able to escape audit reports, IG reviews, and JROC review as to how the final process in NSA was implemented, despite the requirements under JROC to do something else that was consistent with Statute. Someone inside JROC staff would be able to better discuss the original NSA assumptions; and this generic process is not classified; rather it is part of the public record.
It is the job of the NSA and DOJ to explain how this JROC process was corrupted; how the procedures used to implement the NSA technology (without going into the technical details) was circumvented, despite a lawful requirement to comply with the FISA reporting and warrant requirements. Someone had to physically choose to bypass the statute, circumvent JROC, and physically create something that they knew would not be lawfully used. There is a software engineer at SAIC that can explain the time delays; and discuss why the DoJ problems with the I-drive compare with the other SAIC problems on other DOD development efforts. This is not classified. This is part of the public records. SAIC needs to provide this information to the public: Why should we have confidence that you should be hired to do this type of work for the NSA, given your abysmal performance in the DoJ accounting and data arching process.
Eighth, the point of this discussion is simply to drive home the point: There are open sources of information; these are available; the procurement and acquisition procedures are well documented in public law and the Federal Acquisition Regulation (FAR); and these processes link us to fatal admissions and other public testimony that has to be reconciled: Either the process was followed, and someone chose to defy the law; or the process was not followed and there has been fraud.
Either way, there is a problem, this is not classified, and this is a matter of criminal law, a not something anyone can credibly call privileged. This conduct is wholly at odds with our laws; completely devoid of any legal foundation; and all personnel who are briefed on the laws of war and also the Supremacy of the US Constitution working in concert with the NSA should know the Constitutional requirements.
We already know Qwest refused; so a reasonable person would be able to explain what "magic information" they go that justified doing something Qwest refused to do, on the grounds that it was not constitutional nor consistent with the warrant requirements.
Sample qu3estions:
- Why is your position on the case cited to be believed
- How does this assertion you've made using this case square with the Judge advocate
- How does this case citation square with the Military Law Review Journal article on the same subject
- Why are there differences between what you are advocating, and what the Military Law Review says is lawful
- Given there are issues of procedure, why should we believe that this domestic activity is following those procedures
- What evidence can you provide to justify this is a bonafide situation falling under the rule of necessity
- How has your legal team discussed the issues of procedures when it comes to notification requirements
- Why weren't the Agency IGs involved in this review for purposes of providing an urgent notification message to Members of Congress
- Why is the case law that you've cited in the Iran-Contra Minority Report suddenly not applicable
- Why is the Iran-Contra minority report assertions on this issue completely inconsistent with what you are now advocating
- Cheney in 1987 called for careful investigations; now he is arguing for privilege; how can you explain why privilege is being invoked given that an individual cannot invoke privilege, only the state
- Why should we believe the claim of privilege is bonafide
- what effort, if any, has been made to review this information in a non-classified setting
- How could the information be redacted to ensure that this discussion is open and part of the public record
- Given what we know about the Jackson #3 test (where the President's power is at its low point), why should we believe your assertion that counsel didn't know about the Jackson test given that your counsel directly contributed to the Minority Report in 1987
- What reason can you give for a Chief of Staff who graduated with honors from Duke to have us believe that the statements he wrote in 1987, which this Vice President signed, are suddenly not applicable
- The Vice President and Senator Hatch in 1987 signed the Minority Report; yet they would have us believe that in 2006, the President, Addington, and Gonzalez do not have to follow procedures on ORCON, notifications to Congress, or following the specifically promulgated guidelines in FISA. How do you
explain the difference.
- In 1987 then-Representative Cheney argued for a complete investigation; today, we're being asked to believe that signed statement is not to be believed. How can you explain the difference.
- In 1987 the issue was foreign power. Putting aside the legality/illegality of that issue, why are the statements Addington made about Congressional roles, power, and ability to oversee funding not applicable when it comes to a domestic
Issue of the NSA, FISA, and conduct which violates the Constitution.
- What is the basis to classify this information: Why, if there is a bonafide reason to classify this, are the people involved in that original classification part of the decision to declassify; explain how the ORCON requirements work; who why we should believe you're serious about following ORCON in that you've stated that the President (who was not the classifying official) could declassify a HUMINT source.
- Given your experience in CIA and DOD as General Counsel, please advise us of your knowledge of the 5100.77 Laws of war requirements; and how these are reconciled with the Article 3 and Article 82 Geneva Convention requirements that
the laws of war be followed.
- Given Addington and Cheney both visited Guantanamo in 2002, please explain what steps they took to ensure the lessons of the Iran-Contra report were subsequently incorporated into the information they would provide to Congress, and be consistent with the Vice President’s requirement that Congress promulgate policy, as it did with FISA
- Why should we believe you didn't know about the full range of the case law, given that you have a pattern of loyalty to Jefferson, who calls for the law to be ignored and dictatorship and martial law.
- what evidence do you have to justify that this is a bonafide "domestic emergency"; and why should the "law of necessity" be invoked more than five years after the laws were first ignored?
- Given your review of the FISA statutes, and your knowledge of the case law, why was there no update to the fISA statutes
or procedures.
- Why should we believe that the needed changes to FISA (which did not occur) do not amount to fraud upon the court and Congress.
- Your duty as an attorney is to report illegal conduct to your attorney discipline board; what evidence can you provide that, after you were aware of the illegal conduct, and memoranda at odds with Geneva and the US Constitution that you took timely action to provide the ABA with the reports of misconduct as you are required. How did you document your concerns; if there is no documentation, why should we believe you are serious about your oath of office to protect the Constitution and forward evidence of domestic threats to the Constitution.
In light of the questions above, you'll want to give the Members of congress an organized way of approaching each case. The goal of these questions is to better prepare the Member of Congress in those cases where they are denied the opportunity to discuss the issue with counsel. Encourage the Member of Congress to take the lessons of the Iran-Contra minority report, and sit down with their legal teams, and develop a range of legal arguments that Addington will likely use to twist the law, assert the absurd, and otherwise argue for doing what is clearly at odds with the law.
The goal here is not to practice violating the law; but to go through some scenarios that will clearly give the member of Congress a heads up to the legal non0sense form Addington and Gonzalez; and the rest of the DoJ legal team.
Your goal should be to give your Member of Congress the information they need in advance to the likely flaws with the secret-argument provided used to justify violations of the law on still undisclosed activities. It is likely that these activities related to warrantless searches of persons; illegal kidnapping and detention without charge of American citizens; and physical, warrantless searches of US personnel held in stateside locations for more than one day without charge or appearance before any court.
Your goal should be to identify the legal issues and questions Members of Congress should be able to ask given the likely restrictions they will face in not being able to get access to legal counsel at critical times.
The goal of the assistance should be explicitly with the understanding that because there is no adversarial system when the secret briefings are give, members of Congress are going to have to play the role of the adversarial. Executive agencies will not answer any question that is not asked; and they are well prepared in advance to provide scripted non-answers. Congress needs to come up with a plan to better scope the range of the likely responses; and better put some meaningful consequences on witnesses and briefers when they fails to disclose the full information.
Members of Congress should be encouraged to approach the DoJ, NSA, DoD, and CIA briefers with skepticism, and impose a high burden of proof;
Also, there should be follow-up visits by the Congressional criminal investigators to gather evidence to either support or reject the assertions.
The core problem is that Addington and Gonzalez have invoked a fictional doctrine of "necessity" on the basis of dubious claims.
They've twisted the case law and citations to justify one set of conclusions when it comes to the Iran-Contra affair; then they contradict themselves when it comes to the NSA issue.
At the same time, the real scope of the NSA activities is widening; it is a domestic program, and it is at the low ebb of the Jackson's third tests.
The issue is that the rest of the case law citations which Addington used in the Minority Report are not only inconsistent with the NSA activities and argument; but are wholly at odds with the real case law being invoked on a domestic issue.
Your goal should be to flesh out the flaws of the legal arguments Addington and Gonzalez have provided on the Torture, abuse, Rendition issues; then apply that insight to the known NSA activities; then going forward develop a list of questions that should be asked on the full military necessity issue:
- Why should we believe this is a bonafide necessity issue
- What open source information will be provided to the public so that they can review the procurement and decision making process
- What technical details, even if revealed, have no bearing on whether the procedures were or were not followed
- Which technical solutions that would have ensured compliance with the clearly promulgated policy (which Cheney mandated) were ignored, permitting the NSA to thwart the clearly promulgated FISA reporting requirements
- How do the military necessity issues invoked in the Iran-Contra Report square with the fact that we're in 2006, fully 5 years since the bunging of the summer of 2001.
- How do the "law of necessity"=arguments which Addington provided in the Minority Report square with what Gonzalez was providing in 06 Feb 2006 before the Senate Judiciary Committee
- Which holes in the case law existed; and what arguments and settled law did Addington and Gonzalez ignore
- Ask the Members of Congress the last time they compelled an IG to review the statutes of the Iran-Contra Minority Report findings; and how the progress to date does or does not square with what Cheney advocated in 1987; what oversight plan, if any, does the Chief of Staff have to ensure that the lessons of the Minority Report are consistent with the oversight plans and ongoing reports to Congress, as required under the Congressional oversight roles and functions, which this Vice President recognized as valid Congressional roles in the Minority Report.
The issue with the laws of necessity is that when this Chief of Staff and Vice President invoke them, there is a downside: Consequences.
Lincoln is well known to have violated the law. It was only up to Congress to indemnify him. How can Addington and the Vice President argue that they should be indemnified on something that was not a true, bonafide "issue of necessity", but more linked with a desire to avoid precedent, not be consistent, and hide evidence related to a willful desire to avoid domestic requirements which are well established under the Jackson 3 test.
Check the Congressional Research Service for "military necessity" language and "law of necessity" in their illegal reviews.
Explore the doctrines of governance taught at Georgetown/Duke Universities (where Addington attended) and come to an understanding of when the laws school advocates the Jeffersonian approach to law: The law can be ignored.
Determine if the Congressional research service has a report indicating the "laws of necessity" cases in the Military Law Review-like journals; and how the types of Cases cited in the Iran-Contra affair Minority report square with the results we have today on issues of rendition, abuse,
illegal war, and Geneva.
Your goal should be to determine that to what extent the Congressional Research Service may have issued language, a report, or other information which professional scholars cited, and was subsequently used in case law which Addington, Gonzalez, and the Vice President should have known about had they been using credible legal skills, but have ignored, explained away, or (failing to persuade otherwise) thrown the activity into the “this is secret”-bucket.
You will also want to check the existing case law since 1987 on the issue of "military necessity" and "law of necessity". Again, the issue will be which specific case law should Addington and Gonzalez been well familiar with; or were the defective an deficient, and performed at a standard well below what a reasonable attorney should have been doing as new slip opinions were issued. Again, you're going to want to go back to the Minority Report, check the subsequent cases which may have invoked the original cases in the Minority Report Citations; and then determine to what extent Addington and Gonzalez were negligent or reckless in not tracking these subsequent (adversarial) cases which cited the original work, cited in 1987.
Let's consider the large picture of what we have. The goal here is to recreate the likely arguments which (had there been a bonafide adversarial system in the White House, Congress, and Courts) to explore the arguments that should have been raised; and forecast the range of legal arguments the "opposing counsel" (had they existed) would have likely invoked.
Then the issue becomes, despite what counsel should have done, how do we explain the decision of the leadership to do the opposite of what they said in the Minority Report:
- Ignore the policies of Congress they asked for;
- Not follow the specific Congressional direction they said was missing in the Iran-Contra affair
Again, Lincoln’s' legacy form the Civil war is not one of unlimited power. Rather, the Minority Report recognizes there is Congressional role in the domestic appropriation issue. Yet, despite this clearly understood Congressional role, what basis is Addington and Gonzalez giving for their differing explanations of what is or is not constitutional:
The 1986 Military Law review article is not squaring with the Minority Review. The Minority Review report would have us believe that the Presidential powers were well established; yet, the Military Law review clearly states the opposite: That Congress still had the power to review the legality of those domestic activities (just as the President may choose to review the constitutionality of other branches of government’s power); then impose or not impose sanctions or indemnity. [These are issues of power, and are different than criminal law: A legal review for a crime is different than a Constitutional review-power for purposes of checking power.]
It is the job of the outside investigator, public, and Member of Congress to explore what an open-FISA-like debate would have been like, and how (based on what we speculate about the case law the DoJ, NSA, CIA, and White House counsel invoked) the debates likely played themselves out.
We know the outcome: Illegal activity.
The issue is, until the President complies with the Nixon precedent, and assent to providing documents related to criminal activity, what is most likely needed to ensure these clear abuses of power don not recur.
Clearly, the entire system of secrecy has been exploited to invoke a phony "national emergency"; and the clearly understood FISA requirements were changed, yet the participants still were able to keep matters hidden from the court related to illegal surveillance, unlawful acquisition of data, and the like.
The issue isn't that we do or do not protect the nation; the issue is when the rules relate to protecting rights are ignored, and we have nothing but abuse of power to show for the results.
The issue isn’t simply whether the rule of law prevails ;but why the American public should have confidence this leadership is serious about asserting their oath. There is no reason for Americans to lose hope; rather, Americans are fully capable of comprehending why, despite the many abuses and criminal activity, those in the White House, DoD, NSA, CIA, and DoJ have any hope of avoiding detection. We've learned alot since December 2005; and we now can clearly show there is a link between what should have happened after the Iran-Contra affairs; and what we actually have. The Vice President’s comments in 1987 do not square with the results; and the legal arguments invoked in 1987 are not credible given the legal arguments the Judge Advocate Generals know well: At home, the laws of peace applies.
When we look at he issue of military law, prudential power, and the military law review journal on the matters of Lincoln, it is clear there is a contrast.
This Vice President and his Chief of Staff have asserted a non-sense notion of implied in authority between 2000 and 2006 that is wholly inconsistent with their original arguments in 1987; and the subsequent Military Law Review Journal which wholly rejected their twisted representations of the cited case law. Putting aside the fact that FISA of 1978 trumps what may or may not have happened between 1864 and 2000, contrary to assertions that what Lincoln was "within his power," what Lincoln did was not lawful, and was subject to rebuke
Your goal should be to highlight the case law issues (in the Minority Report, and cited as cases) that turn Addington's arguments related to the NSA-FISA issues on their head. It remains to be understood how much pressure the White House is putting on the Senate to appoint judicial officers who similarly embrace a warped sense of history and law on issues of law of necessity, and Jefferson's call for Martial law and dictatorship, fully 4 years after the immediate (arguably, manufactured) crisis has well ebbed.
[As an aside, if it remains “such a big crisis,” why are DoJ Staff attorneys still surfing the internet on non-official matters; why are troops no longer going after en masse the “big scary people” supposedly in Afghanistan; and why cutting money from the “very things” supposedly were are protecting: Washington DC. The only answer is that the money/manpower are going to illusory problems; and the asserted-problems are over. This is the same as “crisis over”.]
The K-case should be smeared in the face of those who advocate violating the US Constitution and advocate the illegal provisions in the Patriot Act which defy our law
Take a look at the ACLU site for the Torture-abuse memos. Also look closely at the redacted comments related to the National Security Letter on the Connecticut librarian. You’ll notice language in there that is redacted; and then be able to contrast this with what Cheney said in the 1987 Minority Report:
- Why is Cheney asking for policies to be clearly promulgated; but despite that Clear constitution, the White House is asking f0r fairly benign information to remain suppressed;
- Given what we know bout the illegal conduct related to the NSLs (in that they are not consistent with the 1st Amendment), how can we explain how this was approved/argued before Congress when it is clearly at odds with the issue of necessity as it realties to the case law invoked in the Minority Report.
Take a look at the Roll Call information on AT&T. Addington was a former lobbyist with Baker, Donalson.
Also, Baker Botts is linked with AT&T with the mergers; and with Cheney's Halliburton.
Your goal is to reconcile the Federalist 78 judicial review duties (which, if they fail they could be impeached), with Mein Kampf; issues of "no need to prohibit something that is not allowed" in re the 1st Amendment; and issue of Disbarment and Article 3 and 83 of the Geneva Convention:
- What is to be done
- How do we ensure there is a timely review of the issue
- Given what we know about the Minority Report, how do we assess the scope of the conduct
- What is their goal and agenda: What real objective were they serving/loyal
- If what they were doing was "acceptable", why the secrecy?
- If they thought the FISA court would reject the conduct, why did they do it;
- Propaganda-requirements-allocations mismatch: How can they square their assertion of a “big scary problem” with the actual manpower-resources which are devoted to “other things”?
- What basis were they arguing for an abrogation of the Geneva Convention, US Constitution, and their oath of office
- When does the executive get to decide when the court has no role, and the law of necessity trumps
- If the law of necessity was applicable, why did Gonzalez bother to seek updates to the FISA statute; why not keep it secret;
- If the law of necessity was valid, why did Addington agree to throw out the cases which the FISA court asked to many questions of; or when the FISA court was suspicious that the evidence was not lawful -- clearly, if there was a true "necessity" to engage in warrantless surveillance, the FISA court would have understood, and would have permitted the retroactive warrants. yet, despite this provision, Addington wanted to deny the court of the full information related to the illegal activity, which is clearly well below the threshold of the Jackson 3 test.
- How do we explain Addington's comments in the Minority Report about the Jackson 3rd test; but then we are asked to believe that this did not apply; or that Addington did not think about the Jackson test.
- Who know about Jackson's 3rd Test in the White House when decisions were made about ORCON declassification of the HUMINT name
Your goal should be to carefully review the Minority Report and let the world know that Addington is in a no-win situation:
CIA and ORCON
- A. That ORCON classification can only be declassified by the organization
- B. That ORCON relates to HUMINT
- C. That a Presidential discussion of an ORCON-related document does not amount to a lawful declassification
DoD and Geneva
- A. The 5100.77 laws of war program are clearly a mandatory requirement on SECDEF; while in the White House in 2000-1006, Addington would be in a position to well know the applicability of this requirement, yet he results are contrary to the conversations between Addington and Cooper
- B. Yet, Article 83 of the Geneva Convention imposes on the legal community a strict requirement to ensure the laws of war were followed; yet Addington termed the Geneva Conventions quaint
- C. Article 3 of the Geneva Convention only mentions belligerents; yet Addington appears to have invented a legal fiction by invoking "unlawful combatant" without ensuring the Senate ratified this unilateral abrogation, amendment, or change to the US Treaty obligation;
- D. FISA impose on the NSA a requirement to follow specific guidelines; yet Addington appears to have guided others to ignore the court, not follow the guidelines, and invoke a phony issue of "necessity" which is wholly at odds with the precedent of Lincoln and the 1986 and 1988 Military Law Review clearly showing the President remains subject to the laws, and cannot unilaterally ignore them without Congress and the Courts.
Recommendations
Even if the Congress refuses to investigate, the public is well positioned to comprehend these issues.
The laws of war clearly were ignored; the laws of peace apply; and the Geneva Conventions were in full force. Addington cannot explain why, despite his superior performance at Duke University, his legal opinions and guidance are wholly at odds with the law.
Addington appears to have at best selectively shaped policy to achieve unlawful outcomes. At worst, he's recklessly ignored his legal training and oath of office, thereby presenting himself as a domestic threat to the US Constitution.
Rest assured, if the White House refuses to cooperate, there are plenty of people who are willing to fill in the holes, provide information, and otherwise show how Addington's claims in the 1987 Minority Report are wholly at odds with the legal fiction and dubious claims he's offered between 2000
and 2006.
At best Addington remains a legal impediment to protecting the US Constitution. At worst, he remains a reckless source of defective legal information. You and your staff are well advised to watch your back, carefully document everything Addington stays, and work closely with US Attorney Fitzgerald.
Addington does not appear to have any legal foundation upon which he can reasonably rely before the Grand Jury. Yes, Fitzgerald has a website, not because of what Libby or Rove may or may not have done, but because of the larger issues: What Addington should have done, but has failed to do.
Given his insular approach to reality, Addington will be hard pressed to endure a single sitting before the a full Grand Jury. His story does not add up. His legal opinions related to the CIA-name and ORCON are wholly at odds with what is reasonable given his undersanteeding of the case law, as documented in the Minority Report; and wholly at odds with what a reasonable attorney given his experience at DoD/CIA should know about the issues of ORCON, Geneva.
It is our view the Grand Jury will not find Addington to be a credible witness (in that he has made out of court statements that are not consistent with statute, treaty obligations, or his oath of office) and will likely be indicted for:
- Perjury
- Obstruction of justice
- Fraud
- Witness tampering
- War crimes, violations of Article 82
- failing to act when he should have known policies and memos
were contrary to statute and treaty obligations
- Illegal abrogation of the US Constitution and treaty
- Illegal changes to the Geneva Conventions without proper
coordination with the Senate on changes to procedures, requirements, and terms
in the US Treaty
- Violation of ORCON
- Advising others to violate the law
- Conspiracy
- Refusing to distance himself from illegal activity
- Conduct wholly at odds with his oath of office 5 USC 3331, and requirements as a legal professional
It remains to be understood how Baker Botts is implicated; and to what extent the ongoing litigation against AT&T implicates
Baker, Donalson.
Sample Notes: Minority Report Review
The following comments are not intended to be all inclusive. Rather, they are merely suggestions on issues in the Minority Report as they related to the NSA hearings. feel free to ignore these comments; they are designed to facilitate discussion, and provide suggestions on other lines of inquiry into Addington, the Vice President, and Gonzalez when it comes to issues of the NSA, domestic surveillance, rendition, torture, and illegal searches and seizures.
Chapter 2
page 457
Notice the focus of Iran-Contra is foreign policy; wholly at odds with the domestic-related issues of NSA, which are well covered by clearly promulgated FISA Statutes. Cheney clearly called fro specific guidance from Congress over the Iran-Contra affair; it remains up to Cheney to explain why, despite this call for the specific guidance, he and Addington ignored the specific FISA guidance with respect to the domestic NSA activities.
Key quote: "But the fundamental law of the land is the Constitution." is add odds with the Jeffersonian notion that something else, besides the law, is supreme.
Cited quote: "Unconstitutional statutes violate the rule of law every bit as much as do willful violations of constitutional statutes."
The chapter asserts the notion of "Constitutionally protected exercises of inherent Presidential powers." which is different than "inherent authority". The subtle difference is power v. authority, which you will see more of in the Military Press Review.
The distinction is important; do not let them confuse you, or make you believe they are the same. We have ministerial duties which can be codified by Statute and a lawful limitation on authority; and there are powers which must be expressly delegated.
The important thing is that power is not assumed, but must be linked; and now here does the Executive have any power to assert Congress' Article 1 Section 8 powers of defining rules of capture. Rather, these rules are already in the US Code, defined at war powers, and these laws are consistent with the Geneva Conventions, and the 5100.77 laws of war program.
Keep in mind as we go through this analysis it is 2006 and we're focusing on the NSA domestic activity; the information we're working with was written 20 years ago, and relates to a foreign issue. it is important to keep in mind what we're doing: We're extracting the sentiments from 1987, forecasting how these similar
extractions were applied to not-yet known activities and memoranda; and then
exploring how the 1987 case law situation forms patterns which are useful to
understand the arguments surrounding the NSA activity.
Let's consider the "struggle" of overlapping power in the context of the DoJ raid on Congress. Notice this quote, [just after Note 1]: "But to acknowledge the existence of a struggle is a far cry from seeing the Constitution as if it permits any branch to go after another's powers, without bounds." The same could be said in 2006 of the Executive's incursion into the Congress; and thus we find the central problem tearing Gonzalez and Addington: How do we reconcile the struggle, which procedures, and which Precedents; and which legal arguments and case law will justify inclusion or exclusion. Clearly, Addington and Gonzalez are not on the same page.
Addington cites the Article 1 Section "necessary and proper clause," clearly undermining his contention that Congress has no role in FISA in regulating the departments; by ignoring FISA, Addington is admitting that agency-related procedures have been thwarted, thereby satisfying the "Knowing" element in re fraud.
Note carefully the discussion on page 457 which says that congress could not "legislative away the Supreme Courts power of judicial review" -- which is equally applicable to the signing statements: [paraphrasing, by inference]: "The President cannot use executive power to take away the Congress exclusive power to make rules; or not follow the law; or interpret the laws -- that is the power of the other two branches.
The signing statements, and reliance on them when they usurp the power of Congress, state that the law will not been enforced, or assert that the law is not constitution are Executive acts, in themselves, unconstitutional."
- Corollary: If Congress, on page 457 of the Iran-Contra Minority Report cannot usurp power of the Executive, then the Executive cannot be allowed to do the same on a matter which has already been promulgated on a domestic issues, at the ebb of the President’s power using Jackson's third test. (Obviously, whether Congress chooses to do so is another matter; however, the States may step in where Congress refuses to protect This Constitution.)
page 458 [image00006.tif]
The first paragraph of page 458 gets into a curious dance on whether laws can or cannot usurp Presidential power. This is where the shell game start.
Notice closely what Addington is doing: He's presuming that the power asserted (whatever that is) is lawful. However, outside this discussion in the Military Law Review is the explicitly assertion in re Lincoln that found that his conduct was outside his authority. Addington fails to distinguish between lawful and unlawful assertions of power; something he asks the readers to (incorrectly) presume is lawful. Moreover, he makes no allowance for what Congress is to do if the Executive unlawfully asserts a power not delegated; or unlawfully asserts a power which has been exclusively delegated to another branch of government.
Addington argues that a law prohibiting the Executive to assert power is improper.
This is absurd: Because under the first Amendment, Congress shall make no law prohibiting speech; conversely, this means that the President may also do nothing which prohibits speech. That the President has not been expressly denied something does not mean that he has to do so; rather, because he has not been delegated that power, the Amendments were added to further ensure that the non-delegated powers were not asserted
by restricting free speech.
Conversely, where the Executive does not have the power to do something -- as is the case with engaging in domestic surveillance -- this does not mean that the President may then ignore the Constitution. Rather, the Congress through its Article 1 Section 8 powers does have the power to define when the Executive may ignore the Constitution so long as he follows the ministerial duties/procedures. In the case of FISA, Gonzalez coordinated many times prior to 2004 on FISA changes; yet Addington is reported to have counseled others to ignore the FISA court. This means only one thing: That despite the sentiments in the Minority Report -- that the powers of the Executive cannot be retrained -- are wholly at odds with what Gonzalez and Addington knew: That FISA was a requirement, and that if the knowledge of those violations were presented to the court they could be in trouble.
There is one error (among many) on page 458: This is not correct:” All three of the Government's branches were given both express and implied powers." Notice the problem: There is no cited case; and the public record suggests the opposite: That there are only express powers, none implied. [Recall 10 Amendment: All powers not delegated are reserved to the states and people respectively.]
Notice also an important principles, which this Executive in 2006 has done: "Congress does not have the authority to arrogate all of the implied power to itself." or that matter, given there are no implied powers, neither does the Executive have the implied power to ignore ministerial requirements on the Executive which he agreed to follow so that he may violate the 4th Amendment with approval of the FISA court. When the Executive ignores the court, by passes the law, and does the surveillance outside the law he is no longer protected,
especially when the ghosts of Jefferson and Madison scolding, "You didn't learn the lesson of Lincoln: If you ignore the law, for whatever reason, you are personally liable for that violation."
The issue is that this executive cannot credibly invoke a "national emergency" When, despite dodging that so-called emergency, he took the time to coordinate on FISA changes; then ignored the FISA court. A true emergency would have been within a matter of hours; this executive took many years to come clean. That is not credible emergency; rather it is reckless disregard for the law and ministerial duties which he swore an oath to God to uphold, enforce, and faithfully execute. If there was a problem with the law, then that should have been ironed out; he cannot credibly argue there was an emergency while DoJ staff attorneys have the time to surf the internet looking at, and updating, non-official websites wholly unrelated to case law, DoJ official business, or anything to do with legal matters or the "emergency."
Also notice on page 458 the curious history on checks and balances. Regardless the "confusion" over the checks and power-history, note the fatal assertion with respect to FISA-NSA, ". . .the framers did not want power to be used arbitrarily, and that checks and balances were among the means to guard against arbitrariness." Addington cannot explain, in light of this quote, why he ignored the FISA statutes; and also Article 83 of the Geneva Conventions.
Note 7 discusses the "vortex" of Legislative power. Today in 2006, the same can be said of the Executive vortex: What is to be done when the vortex of legal-nonsense induces the Congress to assent to something other than their "Close connection" with the law and the People?
Notice the lessons of the non-NY Delegates: There were weak governors. Perhaps a solution to this is to find a state-level model that does the same for the US Executive so that the Executive is stripped of power. Perhaps we need to have a subservient clerkship as Sherman envisioned.
Notice also during the discussion on the Constitutional Convention, the President had the power to enforce laws: What is to be done when that power, requirement and duty is not asserted; and the Executive chooses to "not enforce" that power against himself?
Page 459, image00007.tif
Notice at note 10 that the debate over "make" vs. "declare" war occurred on August 17, 1789. The issue with respect to the power was whether an instant, surprise attack was to be something the Congress or the President handled. They chose to grant this power to the Executive: He can make war to repel a sudden attack.
The important point is that it must be an imminent attack not something that is speculative. It is a misreading to overly state that the President was given
some or any discretion on use of force without a declaration of war; the key with respect to the NSA issue is that the use of force is not a declaration of war.
Moreover, when that military technology is used against Americans, it must be done in a manner that is consistent with the law. Again, a full reading of the K-case best summarizes the issue: When we are a nation at peace, and dealing with domestic issues, the laws of peace prevail.
In this case, the FISA applies; and the President is not given any discretion whether the law is or is not to be followed; moreover, Addington and Gonzalez do not have any lawful authority to ignore the FISA court or direct others to suppress information of illegal activity; nor can they, to protect their individual persons against consequences, lawfully invoke state privilege when that claim is actually related to a personal interest to avoid detection of violations of the law.
[These arguments are wholly consistent with the ORCON requirements (thou shall not classify information to hide crimes, incompetence) which Addington well knows; and also the issues and limitations related to privilege]
Note also at note 13, the issue of treaty powers is raised: This is inconsistent with what Addington and Gonzalez actually did with Geneva in their unilateral abrogation of that treaty. IT may be argued that one branch may have a lead role in treaties; but this does not give any single branch to abrogate a treaty unilaterally as Addington and Gonzalez have done, thereby violating the US Constitution, and Geneva Article 83 requirements that the laws of war be enforced.
It is incorrect to say that the "relationship" between Congress and the Executive was to be "worked out in practice". Rather, with respect to FISA, ad the Vice President called for in 1987, springs from a clear Congressional policy: The FISA statute. We do not leave it up to practice, or to muddling through violations of the law to arrive at best practices; rather, these best practices are state in law, and it is the role of the Executive to assent to those laws he freely chose to not simply enforce, but follow.
This President would have us believe that there is ambiguity where there is none; or that the laws constrain power, where he has no power. He was no delegated the power to self-issue warrants or ignore the courts or Constitution; rather he was delegated the ministerial duty to follow FISA. He cannot appeal to ambiguity where there is none, especially when Cheney has the very specificity he (rightly or wrongly) lamented did not exist in re Iran contra.
The federalist Analysis of Political Principles
Let’s keep something in mind as we go through here. "Although the convention left a great deal unsettled" one thing which Congress did settle in 1978 is how the Executive would engage in domestic surveillance: Using the FISA process. It is absurd to appeal to the ambiguity of the 1700s as a basis to then argue the Executive in 2000-2006 can fill the void. There is no void; there is no ambiguity; and there is nothing unsettled: The policies were clear, just as Cheney said they should be in the wake of the Iran-Contra affair.
Addington also shows he understands the difference between the federalist and anti-federalists; thus he would know that there is a difference between the powers that are not delegated that do not have to be prevented; and the 1st Amendment that asserted the opposite: That even though the Congress was not given the power to do something, they were expressly denied the power to abridging freedom of speech. The President has no delegated power to make any law, so there is no reason to prevent him from doing that which he has not been delegated. Yet, despite this "obvious" interpretation, Addington and the Vice President have invoked the very Orwellian absurdity they derived at the beginning of the discussion: That laws cannot be passed to deny power. In this case, despite now power to do something, this Executive is drafting a signing statement then issuing guidance to do the Very thing which was never delegated: The power to ignore the law and Constitution.
Perhaps Addington and the Vice President should, as punishment, be forced to write out in long hand their Iran-Contra Minority Report; and then forced to comment on the issue. Fortunately, the Grand Jury can ably ask the
questions.
Notice Addington's fatal invocation of federalist 48, mandating checking occur. this is consistent with FISA; which Addington says need not be followed.
- How does Addington explain his understanding of Federalist 48 in the minority report (as it relates to checking power), but his apparent reckless disregard of the clearly promulgated FISA statute which mandates ministerial procedures be followed so that the President may ignore the warrant requirement? No answer.
Notice the note at 21, whereby the interest of "debate" is invoked. How can Addington or Gonzalez reconcile this "interest in debate" with the refusal to permit the Members of Congress to discuss with counsel the legal issues related to the FISA? No answer. What's more interesting is that the power to deliberate and formulate law is a power exclusively delegated to the legislature; and there is no legal basis for the Executive or his staff to ignore the will of the Congress; or debate issues which have already been long settled on the Constitution: Thou shall not violate the Constitution.
Addington and Gonzalez appear to have invoked the legislature's exclusive power of debate, and thrown the Entire Constitutional Geneva Convention to the air as if we were in 1787, in the heat of August where things were "so confusing." No, just as Cheney said in Iran-Contra, we need a clear policy – Congress had one: It is called FISA. Cheney, Addington, and Gonzalez appear to be dissatisfied with getting exactly what they ask for: Clear directions.
Note also the problem Addington has by invoking Federalist 37 and the needed security against "internal danger" -- what is to be done when the "internal danger" rests within the White House and currently sit in the Vice President’s Chief of Staff's office? Maybe we'll give him a blue pen.
End Commentary of Page 459
Commentary of Page 460, image00008.tif
Note 24 discusses issues of secrecy.
The problem in re NSA and FISA: what is to be done when the secrecy is abused; and the "emergency" is not urgent; rather, despite the clear procedures, the court is not told that the information was illegally obtained; or that the court, rather than be given a straight answer on the source of the information, is told the case has been dropped so as to avoid court detection that the public trust has been abused.
When organizing the Navy, the rule-making power still falls on Congress. Although there may be administrative rules which the NAVY may be subject, they are ultimately responsible to the US Code, which FISA is one; the laws of war are another. The executive does not have the power to unilaterally abrogate statutes.
Here's another fatal admission in the Minority Report:
Quote: "One could not, for example, challenge the existence [?] of Congressional intelligence committees by saying that the Federalist called secrecy more of an Executive than a legislative trait." This is a stupid comment: The Constitution under Article 1 Section 5 expressly grants to Congress the power of secrecy, so this is not a question of power or a tradeoff between the Executive and Legislature.
Note 29 refers to intelligence gathering; but this is by no means a statement that FISA is irrelevant.
Note 31 is a problem: It is contradictory with the other nation that the Congress, not the President, was more responsive to the people. Curious is that they've contradicted themselves; and would have us believe that Congress and the Executive are "closest" to the people.
Let's consider the general FISA-related deliberations in light of this fatal quote in the minority report: "The Congress produced are more fitting results when the primary need was to moderate internal factional demands through discussion and deliberation before producing general rules." Strange, this "deliberative" and "fitting" process (we would assume occurred prior to FISA) somehow doesn't seem sufficient to this Executive. Perhaps Addington could explain why the deliberative process of Congress in re FISA is ignored, especially after Congress had the very policy which Cheney called for. Or did you not like what you asked for?
[Maybe when you go to soccer games you'll not ask your daughters to do something -- they might actually do it. They may not walk straight home and wander around downtown George town in your old stomping grounds.]
Notice also the discussion on "general rules" and how they are not applicable to "case-by-case decisions". Isn't interesting that we are asked to believe that the "lessons of Iraq" are to be thrown away; it is absurd to suggest that the laws of war are to be ignored as a "general rule" -- rather those rules exist for one reason: To ensure that we are civil, not selectively render to The Hague those attorneys who defy the laws of war and Article 83 of the Geneva Conventions. When the US Executive is lawless, it could be argued that the US is just as reckless as the Taliban and the US legal community should not be expected to be treated any better than the Taliban at Guantanamo.
Let's look at the curious absurdity we are asked to embrace despite Congress clearly doing what Cheney wanted -- Clearly policy -- : Consider this quote in light of Iraq and Katrina "for these kinds of situations, multiple bodies -- like Congress -- are inherently unable to accept blame of responsibility for mistakes." Ha! You might as well have been writing about this reckless President who refuses to accept responsibility for his stupidity in listening to David S. Addington in re Geneva Conventions as they apply to Abu Ghraib, Guantanamo, and the Black Sites. "Hay, ship them down the Cuba, US laws and Geneva don't apply there." Sure, whatever Dave.
Page 463, image000011.tif [Pages 9/10 are blank or notes]
Chapter 3: The President's foreign policy powers in early Constitutional History
The chapter beings with an appeal to ambiguity in that things have to be worked out "in practice." Small problem: When, as Cheney demanded, there be clear policy: What happens when the "practice" is at odds with the policies Congress has expressly stated, and the Executive agrees to follow?
Notice also in the introduction that Addington has mentioned "the use of secret agents for intelligence and cover activities." Wow, in 1987 he's written a comment that expressly opened himself up to a series of questions:
- Given your 1987 writing on secret agents, how do you explain the ORCON requirements that were enacted to protect those secret agents;
- Given the states that the originating official [the one who first created the classified document] has the sole power to declassify
that document how can it be "effective practice" to put at risk the very "secret agents" by disclosing their identity?
Indeed, if we are to believe that there is a link between "power" and "legal duties" we can only arrive at the conclusion -- that the President has the power to do something on the diplomatic front so long as there is secrecy -- only if the President, himself, is willing to submit to that requirement for secrecy.
Addington is in a trap.
All this time we' were told that the reason for the President to have the "sole" power to do something was that he was "better trusted" to do the bidding of negotiations, and engage in protections of the nation. Yet, what is to be done when this "sole power" is abused, and the very basis for his power -- that he says springs from his love of secrecy -- is then turned on its head, and the President, himself, then reveals information that jeopardizes the very conduct and actions he supposedly is "best suited" for? Clearly, if one does not "best employ" the power of secrecy, one is not "best suited" to be executive, and should lawfully be removed from office, so they might better "think about" the things they would rather do: Not follow the law, and conduct ones affairs at odds with prudence, or otherwise be deprived of any claim to assert any power to classify or declassify anything.
Withholding information from Congress is not absolute: The Congress may through the Courts get information, especially when there is no bonafide claim of privilege. But it is absurd to claim an exclusive right to secrecy; all the while denying that right to those who are Constitutionally protected from unreasonable intrusions.
Note also the quote that relates to a decision of what is or not appropriate to disclose, especially as it relates to ORCON: Bradford: "[I]t is the duty of the Executive to withhold such parts of the said correspondence as in the judgment of the Executive shall be deemed unsafe and improper to be disclosed." Conversely, this does not give under ORCON the power to the President to disclose information originally classified by other personnel.
Thus, we can presume that Addington well knew the power of privilege; but fatally argued the wrong way when (apparently, if we are to believe Libby – that Addington allegedly said that the President, by revealing the information, declassified it) recklessly ignored ORCON, which he should have known as CIA General Counsel in re HUMINT.
Let us also note there was a time when Washington Did provide information in re Jay Treaty; and that there is no absolute privilege or immunity based on precedent. Washington did turn over requested information; and the Senate Sergeant at Arms did not Unconstitutionally invade the White House to get the notes.
Note 5 is the first double take, and singing-like statute: "Hay, I did it for prudence, not because I did what the Senate wanted." Sure, whatever George.
This is not correct to suggest Madison was saying, "each branch was the proper judge of its own Constitutional powers." This is a free for all; and at odds with Marbury v. Madison which permits judicial review.
End 463, Tif11
Start: Tiff 12
Tif 12
This stage of the analysis moves beyond a simple rehash of the points in the Minority Report. The purpose is to outline, based on what appears to be a complete rewriting of history, a list of issues and questions which would have to be followed up.
The point isn’t to create a laundry list of questions; but to list those issues – if, when checked and confirmed either way – would test the central premise: That nothing which Addington writes can be taken on face value: There are always other questions and factors that have to be considered.
Page 464
Three is no basis to believe the contention that anything is or is not consistent with a treaty in the 1700s. It remains to be understood which treaty terms were or were not agreed to; or how the process was invoked. Keep in mind that during the Constitutional Convention, Jefferson was in Paris and wrote letters to Franklin in London. The assertions as to the specifics with a treaty in France (one year before the Constitutional Convention) has yet to be scoped out in terms of relevance, accuracy, or other views.
Addington would have us believe that Washington was “convinced” of some point. We judge this statement to be an overstatement. It remains to be determined whether this “conviction” was real; or as more likely, something Addington has merely assigned to Washington out of wishful thinking. There are likely other views on the matter; and whether Washington was or was not convinced of something remains to be understood. There are likely other, more pressing issues which Washington was reviewing; and that the particular issue or rule Addington would have us believe has been overstated, or includes other factors which water down the certainty to which Addington asserts what Washington may or may not have said.
It is unclear that the Washington was or was not convinced of a particular issue; or that the scope of options related to a simple choosing between various options. It is likely that the assertion that Washington viewed taking sides as “disastrous” as an overstatement; and that there were other views and options presented.
It is not clear that Washington took any position; or that others may have discussed a particular view with regards.
IT is likely an overstatement to say that Washington was unilaterally saying something was “up to him”. Rather, we have to take a step back and recall what Washington viewed as his role and duty; and to what extent Washington expressed doubts. IT is well known that Washington expressed grave doubts about his Presidency and his leadership during the early years of the new nation. It is not credible to believe that the same man – as Addington would have us believe – was certain on something as nuanced as diplomacy; while Washington was clearly troubled by far more pressing issues: Internal rebellion, challenges to his authority.
We view the assertion that “it was up to him as President to interpret” to be merely the 1987 version of what Addington wanted to invoke to assert Executive power on Judicial Matters. This is fiction, and wholly at odds with what Washington affirmed with his oath and devotion to non-imperial leadership.
We find no credibility in the statement that Washington ever took any position; that Washing ever held a unilateral position that he could interpret the treaties; or that this ability can broadly applied to the very narrow questions as to treaty obligations or declarations of war. Again, it appears Addington has taken a very narrow issue; and then broadly applied it as if to invoke (in a fictional sense) what Addington might have wished Washington had done so that this could be “precedent” to then proffer before the gullibly RNC legal officials in DoJ.
IT is absurd, on the face of the declaration of war, that Washington would invoke any assertion that he did not have ask Congress for a declaration of war; that Washington ever contemplated such action; or that there was a real war which Washington waged without following the law.
Rather, it appears that various sea-based actions – which Congress has the power to make rules to regulate in terms of capture – appear to be linked. Addington’s problem is that he fails to provide any credible basis to believe his assertions in the first paragraph on page 474.
- Which specific action or set of events is Addington referring to?
- What evidence do we have that Washington as convinced of this particular point
- How does Addington make the claim that Washington was or was not asserting a point, on a matter that “just happens” to match the issues of the Iran-Contra affair?
- Why should we believe that this telling of events amounts to a “formal policy” by Washington?
- Even if the delay o f8 months is true, if Washington was sure of what his policy was, why would histories have bothered to note there was a delay between the start of his action, and the “whatever happened” eight months later?
We are asked to believe that there was a “decision”. Again, Addington is not clear as to why we should believe his characterization of the events; that there was a decision; or that the decision – as Addington has framed it – is real, accurate, or relevant.
Moreover, we have no basis to believe that the “aspect” of the decision was actually “remarkable” other than the fact that the way that Addington has twisted the events, it is remarkable others haven’t mandated Addington justify his assertions in the Iran-Contra minority report.
We have no confidence in Addington’s assertion that Washington ever asserted a “unilateral power to set policy”; or that this was an unchallenged precedent.
We doubt that Washington actually claimed he could “use military force, of necessary to prevent violations of the policy”. There are likely other factors involved.
We doubt Washington claimed anything; and there is likely other lines of evidence which could suggest Washington was doubtful, claimed the opposite, or carefully consulted with Congress.
Given that Washington was alive during the Constitutional Convention Debates – where the power of Congress to make rules related to pirates was discussed – we doubt that Washington would reverse himself, contradict the clear constitution, and specifically invoke a “policy” against “privateers” – this would amount to a assertion of Executive power to act as judge, jury, and adjudicator, despite Federalist 10 to the contrary: No man can be a judge to himself. In this case, if Addington’s assertions are what they are – that Washington was essentially claiming the power to independently decide that conduct – which may or may not have occurred – did or did not violate the law; then this would amount to a 1788 precedent for dictatorship.
But the record is the opposite. Case law and history since the 1800s clearly shows the opposite: That the President has had to assent to the court, and could not unilaterally declare that something did or did not meet a judicial test. This is matter under the sole preview of the courts.
It remains to be understood how this alleged Washington-doctrine has then subsequently been twisted to permit the Executive to state that force could or could not be used domestically; or how the President decided that military force, despite the Posse Comitatus, could then trump the law and rely on what appears to be a fictional precedent.
To suggest that there was “never any doubt about Washington’s authority” is not believable. Rather, we still have to determine whether this ‘authority” was anything which Washington actually presented; and whether Washington had another view on the matter. Again, we remain unconvinced that his “policy” is real; or that the real assertion of the alleged “neutrality” was or was not adequately enforced using the methods, means, and oversight which we are asked to believe existed.
Based on Addington’s reckless disregard for reality, we judge that the asserted “Washington proclamation” is wholly overstating what actually happened; and in no way can we believe that the so-called ‘Proclamation” did or did not trigger a “great debate” or that the debate actually focused on “executive power.” Again, the debate that is relevant is what happened in the wake of the Constitution, not what may or may not be conveniently bouncing around in Addington’s feeble mind.
What Hamilton may or may not have said remains to be examined. It is not credible to believe that the “main constitutional issue” was or wasn’t something. We doubt, based on a plain reading of the 17 Aug 1789 Constitutional Convention notes, that the “main constitutional issue” of the day was whether Congress could or could not do something.
Rather, the “main” issue was how, after listening to a drunken lawyer opine for three hours, how to remove him from the stage on the second day. The “main issue” at the time had to do with whether or not the power to wage war should be something that the Congress should enjoy. At no time on August 17 1789 did the delegates mention France and English treaty obligations in the context of whether or not Congress should or should not have the exclusive power to wage, make, or declare war.
Again, the point isn’t that Congress did or didn’t have the power to declare war; but whether Congress had the power to make war or declare war. It is an overstatement to suggest that treaty obligations would affect how the Congress did or didn’t interact on matters of war. This was never discussed.
Whether Hamilton did or didn’t say something on the matter of war; or how they are or are not related to a “power” remains to be understood.
Chapter Note 7 asserts that Hamilton said something, but it is likely (given Addington’s habit of overstatement) to broadly apply a nuanced conversation, and ask us to believe something was or was not related to the Executive department.
Note 8 of Chapter 3 presents many dilemmas. We also have no confidence that Addington’s accounting of Hamilton’s’ reasoning is accurate, complete, or germane to the real issues – whatever Addington may or may not be focusing on at the moment.
That Hamilton might have said something in the cited note remains questionable, given the subsequent Federalist 78 conclusion that the exclusive delegated power to interpret belonged to the Judiciary.
At this point, we have no idea how Addington has invoked the “It appears to be connected” or what “It” is in terms of Addington’s argument. Hamilton likely is arguing different issue and focusing on something else. For all we know there is another issue which Hamilton is discussing; and there are other views on the matter that flesh out the details. Again, the issue is what the President is permitted to do; vs. what he is required to do. Addington is not clear on this point by invoking Hamilton.
Note 9 includes three . . . ellipses suggesting that Addington has removed text which contradicts his central premise.
End page 464
Page 465, Tiff 13
Note 10 refers to British Precedent of the Crown on matters of treaties, somewhat surprising in that we just had a war against this.
Note 12 would have us believe that there was deference to whether the Executive could or could not be limited. However, the 3rd Amendment did just this – limit the President’s discretion in re how troops interact with civilians during peace and war.
Note 12 discusses exceptions, but it doesn’t mention how the issue was resolved on matters of ministerial duties as they relate to the Constitution.
We doubt the contention that there was “little doubt” about what Washington’s assertions related to “broad power”; or how these were recognized during non-combat situations in re domestic American civilians.
That Sofer [note 13] would have us believe that the Executive-Congressional relationship, as he describes it, is a fair characterization leaves much to be examined; we doubt the merits of the claim that the relationship between Congress and the Executive varied in terms of “degree” rather than kind; rather, Military Law journals reject this contention: The power of Congress broadly applies t the Executive.
Addington’s recounting of the Jay Treaty over the Louisiana Purchase fails to explore the contempt Jefferson had for the courts.
It is a leap to believe that there ever exited, as Addington would have us believe, that there was an [emphasis in original Minority Report] “inherent, extraconstitutional prerogative power for the Executive” – this is a term which defies Jefferson’s style; and is wholly consistent with a Congressional legal staffer hoping to argue for a new twist on reality.
We doubt that Jefferson, as described, was or was not “justifying” his decision; or that the cited text clearly links Jefferson’s thinking with the action. Rather, the law of necessity is simply one where one has to act out an emergency. IN the case of Iran-Contra and the NSA activities, given the time to review the law (and rejected it), there is no bonafide emergency.
IT is an overstatement to say that Jefferson’s comments are linked with a “responsibility” to act in response to crisis. It may be true that there is an emergency; but this does not give him immunity, as Lincoln well found out, and as described in the Military Law Review. By invoking Hamilton and Jefferson, Addington fails to put to rest the issue of legal liability one the Executive violates the law.
That “Jeffersonian” presidents may or may not have done something remains to be explored. Note Sofer’s use of the “inherent authority” label in 1976.
Sofer asks us to believe that Monroe and Madison did or didn’t do something on the basis that, in 1976, are described as justified in a certain way. Note the use of ‘such as” without invoking any case law: “The right to these the Armed forces to advance the interest of the United States” is rather absurd when those “interests” are illegal, and the method to justify that assertion is based on fabricated information.
It’s likely an overstatement to suggest that President’s actions, regardless their reliance on any principle, was or was not disconnected from the law. Again, Addington is not focusing on the legality of the action; he’s merely asking us to accept that the assertion of power, outside the law, is justified. That’s not legal.
Note also Schmitt at Note 16 is quoted as saying that the “enumerated powers at Article II are deceiving in that they appear understated.” Note the qualification: “Appear.” The point is that Article II powers are explicitly; and Schmitt is not legal foundation for us to retroactively assign to events in the 1800s as to what was or was not legal. Rather, Lincoln violated the law; and an assertion of power does not (automatically) attach to it a presumption of legality.
We cannot embrace Schmitt’s contention that the executive is the “particular primacy”; or that this is a law of nature. Rather, Congress and the courts are equal branches; when the Executive abuses power as did Nixon, he can be impeached.
Page 466 Tiff 14
The speed of action does not mean that the action is lawful. It is not well grounded to argue that the stresses an executive faces are real; rather, they can be manufactured. That something is high on the agenda does not mean that the agenda is lawful. It is a presumption of legality that covert actions and secrecy are lawful; the record is clear: Covert, domestic actions may violate the Constitution during times when there is no bonafide emergency. The Executive does not have the power to violate the law.
It is an absurd leap to argue that an external or internal set of conditions – however described or manufactured – becomes the basis to give a green light to any and all secrecy or activity.
Addington fails to cite the specific individuals on the Iran-Contra committee who do or do not hold a position. It is not a reasonable characterization to characterize what Members of Congress do or do not want, especially when then Representative Cheney complained the opposite: That there was no clarity or policy.
As with the arguments during the Constitutional Convention and Baker Botts on the Secrecy Issue, Addington has mischaracterized the scope of the opponent’s arguments.
It is not a credible argument that Congress did or did not narrowly use specific powers to accomplish what appears to be an overstatement of what was intended or hoped for.. It is not credible to believe Addington’s assertions that the opposition hoped to prevent something such as communications. Notice Addington is using the notion of “what is restricted” in terms of information; and asks us to believe that that “restriction” (putting side the reality or absurdity of that attention) then becomes an action -- that is gobbly goop.
Although there are discussions that may occur, those discussions cannot be based on false information; or with the intent to ultimately violate the treaties which supposedly mandate secrecy. The issue before is what is to be done when the Executive abuses secrecy to embark on illegal adventures. One cannot protect something when the ultimate aim of that communication and plan is to achieve an illegal objective.
It is an overstatement that [what Congress may or may not do] [does or does not fall within a precedent of Washington].
It is an overstatement to suggest that [what appears to be an absurd construction] has or has not been challenged successfully – we merely look at the Nixon precedent: Information related to illegal activity cannot be absolutely suppressed using privilege.
It is false, irresponsible, and completely reckless to say that the [narrow construction of the absurd characterization of what Washington did or did not do, that may or may not resemble reality] has or has not been successfully challenged. It may be true that the narrow point has not been challenged [in that it is an absurd characterization of the issue in question]; and it may be true that there has been no successful challenge to something (that is absurd and disconnected from reality) that has never been challenged. However, it is an overstatement to suggest that the “never challenged, likely absurd characterization” means that the opposite is true: That the unchallenged absurdity is true, real, or a bonafide precedent. Rather, this is merely non-sense.
That something related to secrecy is or is not “constitutionally valid” is an absurd statement of the laws of secrecy. ORCON prevent classifying illegal conduct. It is not valid to argue that because something is secret is it lawful; nor that because something is closely held that is either a bonafide secret, or is something that cannot be discussed. There are considerations as to whether those activities are accurately classified; or should be explored.
The examples of the US of force on page 466 are an absurd rewriting of history. Addington fails to discuss the Military Law Review Articles which expressly reject the legality of these actions. Note the curious gap in the events: 1853-1854; then a leap to 1865. Wow, David, what happened to Lincoln – something which Gonzalez invoked when discussing the “big intercept program”.
We doubt Addington’s assertions that Jefferson was or was not doing something for a specific reason; or that the retelling of the account is accurate. Notice the link with [claim] and [authority to do something, absent a declaration of war]. The discussion fails to mention cases where the hostilities are provoked; or why Congress should continue funding something where there was no actual threat, other than one that the US merely provoked or initiated because of a speculative desire to contain a speculative threat.
That Congress may or may not have done something; or the President did or didn’t do something consistent with an authorization doesn’t indemnify the President for all illegal activity. Indemnification is not a permanent green light to wield force; Congress can withhold funds without coordinating this with the President; and can override his Veto if he chooses to ignore the change in funding.
The examples in 466 fail to make the case that the use of force was lawful. Perry’s raid to Japan amounts to a treaty under duress; and fails to account why the treaty should be lawful or recognized.
467 Merely continues the laundry list
The list includes apparent illusory Congressional concerns. April 1941, “appears to have been contrary to an expression congressional limitation.” Note there’s no citation of how this was resolved; why we should believe it; or that the limitation was real.
All the list does is recount the times that the Executive has failed to d what should be done: Not make non-sense reasons to wage war. That the Executive was not prevented from doing something does not forever indemnify all executives. Congressional inaction on one or many issues does not mean Congress cannot take action on another issue.
It is an overstatement to say, “By September, the ships were attacking German submarines.” This is idiotic: Surface ships, by their nature, are passive; when they are in convoy with protection, they are allowed to attack imminent threats. Addington fails to justify why a surface-based ship can or cannot take action against a German submarine; or why this is relevant to any point.
Again, what Truman may have done in Yugoslavia does not forever set a bar to what Congress can require or not require of the Executive. There are no super precedents fro the Executive to do what he wants; then invoke that “I can do what I want anywhere, so put up with what I'm doing now”-attitude, especially when it comes to the matter of clearly promulgated laws related to domestic activities against American citizens.
That the Presidents may have ignored some principles does not mean that all Presidents are forever given a green light to violate the laws of war or wage illegal war.
It is an overstatement to say, “Until recently, the Congress did not even question the President’s authority.” Non-sense. Lincoln and the Military Law Reviews of 1986 and 1988 prove otherwise: Not only did Congress reject Lincoln's actions, but the courts did as well.
It is not credible to believe Addington’s account that the issue was or was not related to an issue of “hot pursuit.” It doesn’t appear as though that “emergency” language came into play, especially given these examples pre-dated the Jackson test which argued otherwise: Even during war, the President must follow the law. What the President may or may not have “felt” he could do in no way legalizes feelings or perceptions. We only deal with events and conduct, and put aside their state of mind. It is a separate matter whether Congress or the courts chooses to ignore or enforce the law.
That Presidents may have acted without regard to the law or Constitution does not make their “conception of their job” something that is relevant given the specific laws which forbid specific actions. It is an overstatement to suggest that because many Presidents have violated the laws that these illegal actions become “inherent” or that a “precedent of illegal activity” then becomes a “precedent of authority.”
The issue is whether Congress, despite passing a law that prohibits conduct, chooses to impeach; and whether the US Attorney and Grand Jury investigate allegations of illegal conduct. The narrow issue of leaking a CIA agent name, should it produce an indictment, can serve the same purpose as a longer list of indictments on other causes of action.
It is legal fiction to argue that because something is not prohibited, it is legal; or that even though something may be unauthorized, Congressional inaction will legalize what is otherwise a war crime. This is not constitutional. It is a separate matter whether there conduct is investigated; or whether there is or is not a good faith effort to cooperate. “Unprohibited actions” is not the same as “legal actions” or “actions which are illegal, but Congress refuses to investigate.” One cannot assert a power related to “unprohibited actions” when they have no power to violate the law, as would be required to carry out the “non prohibited action.”
Notice the word magic: Confusing ability and power. Having the ability to do something is not the same as the lawful power to do so. No president has the power to illegally wage war.
Asserting that the Reagan Administration did or did not “remotely close to this level” is meaningless. The indictments and convictions and jail time show us that the level was clearly inappropriate: It was no legal.
Page 468 Tiff 16
Mudding the Waters: Confusing Secrecy in Location A With Legality by Part B
The association is meaningless.
Invoking the French Credit line would ask that we wear the hat of the French, and argue whether France’s actions were or were not legal. This is irrelevant, regardless the actual benefit. Addington fails to link this French government action with any argument. That something is secret doesn’t mean that it is or is not illegal; the issue in the case of the French loans would be whether the French government violated their law; and whether the US Congress was or was not kept in the dark has no relationship to whether the French conduct was or was not lawful. The only benefit to the French of Congress being kept in the dark, was that if the French Conduct was illegal, a Member of Congress might have disclosed this information to the French authorities for prosecution. On the whole the anecdote of Note 20 is not useful or relevant.
Rather than justify confidence that they’re following the law; all Addington has done is, as with the NSA, is invoke the idea of “aren’t secrets good” without looking at the net result:
- What do we get for the secrecy
- Has secrecy been used to hide something that should be known
- Just because something is secret, it doesn’t mean that it is legal
Military advantage can be obtained with secrecy; but an advantage does not mean that the overall action is lawful or consistent with treaties. The issue then becomes whether one is aware of the violation; or whether the violation is or is not timely sectioned. That one hopes to avoid detection, and to achieve that outcome misleads others, it does not mean the original deception or violation is ratified; it is merely buried deeply under a larger pile of inconstant stories which are more easily detected by even the must bungling bloggers. Te only way others would not notice the disconnect is if they refused to question the obvious – Congress, thankfully leaves us no doubt in this regard: Where the evidence of a mess is obvious, Congress is quick to hide it’s eyes. That is not leadership. It is recklessness and malfeasance, especially when so many things do not add up.
Prudence for a lawful objective is different than imprudently invoking secrecy to hide incompetence and the illegal activity.
What Washington may or may not have done is meaningless: The laws of 2006 rest on the FISA 2001-2004 negotiations. What some Presidents may or may not have done using secret accounts is meaningless: The issue is what did Congress expressly state when it came to issues of requirements, accounting, and certifications. That the Executive may have had discretion in one situation does not mean that he has the power to exercise discretion on matters Congress made a law to restrict, prohibit, or define.
One cannot argue there is “discretion” or “power” when the Congress has codified the President has an explicitly requirement to do or not do something. The President does not have the discretion to unilaterally or randomly ignore direct Congressional will, policy, and language which may or may be inconvenient to follow.
Regardless how one looks at cover action, there are restrictions on how that action is or is not employed domestically. The Smith Act expressly forbids things that the President might, in hopes of sanctions, argue are secret or are discretionary.
There is no implied power of the President to exercise any discretion on matters where the Congress have invoked a ministerial duty to act or restriction from acting.
There is a difference between illegal, non-authorized, ratified, indemnified action. What may or may not have happened in a particular situation does not grant the power to exercise discretion and not follow the law, treaty obligations, or other specific bars to conduct. He does not have discretion on matters that are not discretionary: The Geneva Conventions or following the Constitution.
That someone did or didn't have express approval in one situation doesn’t mean that they were barred from action. The two situations are distinguishable. Although the Senate may have no expressly granted approval to do something, it doesn’t mean that the action was or was not illegal. Again, we’re confusing the issues of legality and power; assent, permission, and duties. That something was or was not authorized doesn’t mean that the issue is legal; nor does the converse apply: Just because something is or is not expressly prohibited doesn’t mean that the action is lawful. One cannot do something they have no power to do: Violate the law and Constitution.
That something is done in secret and given discretion does not mean that the action is or is not lawful. Rather, the issue is whether that action did or did not violate the law; however the Executive might agree or disagree with conclusion is irrelevant. The law is the law; whether it is enforced, followed, twisted, or ignored is a separate issue. It is absurd to invoke one set of conditions – which may or may not have been legal – to then case others as having committed less serious abuses. The results are clear: The guilty parities were put in jail. That they may have been pardoned does not immunize their conduct from scrutiny or historical examination.
The issue isn’t whether the action in and of itself is illegal; the issue is whether the overall course of events achieve an illegal or lawful objective. It is one thing to assert power and exercise discretion on a matter of state interest; it is quite another to invoke an irrelevant anecdote to justify illegal action, then rest on distinguished precedent. That will not float.
Again, it is different whether the information was or was not disclosed; and whether the action related to that information was or was not legal. Secret information does not legalize illegal conduct. The issue is not whether there are or are not allowances for secret activity; the issue is whether that activity is or is not lawful when compared to the US Constitution, statutes, and treaty obligations. Rather than find a way to legally accomplish a goal, this leadership would rather circumvent the law and do it any way. What’s more troubling is that their means, methods, objectives, and intent contradict the law.
It is a red herring to argue that Congress “never approved or was asked to approve” a covert activity. Even when asked, this Executive refuses to assent to the law. That Congress did or did not have a role in something is meaningless; the issue is whether the law was or was not followed.
That Congress was or was not consulted is meaningless: The law is already a statement of policy, and set of expectations. That Congress did or didn’t act on a matter is meaningless. It is a leap to suggest that Executive action – devoid of legality – is ‘inherently anything” but illegal. Again, there is no “inherent authority” of the Executive to engage in illegal activity; whether that activity does or does not remain secret is irrelevant; nor does it matter what the alleged co-conspirators hoped to accomplish; or that they intended for their illegal activity to not be discovered.
It is absurd to argue that the activities – regardless their link to or separation from the law – did or did not raise Constitutional questions. [Absurd, not credible: “no Constitutional questions”]
Remarks about Chapter 3 Conclusion
Presidents may or may not be independent. They are essentially clerks, whose main job is to carry out the law. Whether Congress is or is not respected as an institution is not relevant. The only guide this Executive has is the law. That he may or may not have a desire to do something above and beyond what Congress has permitted or outlawed is a separate issue.
That a President is “independent” of Congress is not a debatable point. The issue is whether the Executive actions are or are not Constitutional, lawful, and consistent with statute.
That something was secret does not invoke a super-immunity-shield. If an executive chooses to keep something secret, it doesn’t mean that Congress has permitted the illegal activity to occur. It is not up to the President to inform or not inform Congress of something, when he has a specific requirement to inform Congress of illegal action under Title 50. He cannot assert a power to defy the law when he has a ministerial requirement to communicate. This Executive dubiously asserts a power to defy a clearly established ministerial duty. Even clerks know or should know that that is absurd.
It is an overstatement to suggest that secret activity unilaterally does anything. The Executive may not unilaterally invoke, abrogate, violate, or amend a supreme law, treaty, or Constitution. That action may have been linked to a policy is meaningless and in no way legalizes the policy or immunizes the actors, especially when the rights are clearly established and well promulgated as they are in the Bill of Rights and Constitution.
It is a diversion to suggest that a dispute abroad, then immunizes the President from accountability for domestic violations of the Supreme Law. That there may be a track record of abusing power abroad; or not adequately involving Congress in foreign affairs is meaningless when discussing the Bill of Rights as they apply at home, domestically.
Note also in the Conclusion, Addington fatally uses the phrase, “belligerent states” – there is no Geneva-related term: There are only belligerents; and there is no distinction between states and individual belligerents.
Whether a dispute involves the United States, third parties, or other actors, the US laws as they related to US Citizens on the domestic front are supreme. That a policy may be enforced abroad illegally or legally is of no relevance to whether the US military does or does not have to follow the law when technology is or is not employed domestically, under the purview of FISA, and within the context of domestic activities.
That US troops may have been used abroad without approval does not mean that troops may be used domestically without approval. There is the Posse Comitatus Act. That domestic use of troops is illegal doesn’t mean that keeping the activity secret immunizes the President or legalizes the otherwise illegal conduct.
That the Executive may have done something in the past to achieve an interest or outcome despite Congressional language to the contrary does not mean that all Executives are forever immunized for violation other prohibitive Congressional language. That Congress does or does not approve a secret action does not mean that Congress has endorsed or immunized action that is otherwise illegal.
It is a false argument to suggest that by asserting an option, regardless of its legality, that that option then creates a new power beyond all legal constraint. That the President may or may not have done something does not create a new power; nor has any President shown that he has lawfully taken that power from anyone and used new powers. That the President may have exercised options does not mean that he has created new power; nor does the prior assertion of an option, create a new power which can or cannot be restricted.
Executives are not immunized by asserting an option; nor does the fact that Congress did or didn’t say something mean that the law does or does not apply. Whether the Executive chooses to request, ignore, or otherwise mislead Congress has no bearing on whether the Executive has to assent to the law. That an Executive may have exercised an option with or without Congressional approval does not mean that that action is lawful, nor necessarily an appropriate or Constitutional assertion of power. Power is limited by treaty, obligation, duties, and statutes. It is irrelevant that Executive may choose to pretend: An “option exercised means that power that cannot be questioned, sanctioned, examined, or otherwise rebuked.” An option exercised does not create new powers, especially when that option is not lawful. This is circular reasoning. It is irrelevant that the Congress, courts, media, and legal advisors have not challenged this circular reasoning. It remains circular, regardless the graduate statutes of those offering this as a legal foundation.
It is one thing to argue that the Executive has a role in something; or that the Executive has a primary role in the same. We are not persuaded, and we have seen nothing to justify confidence in the assertion that, “It leaves little, if any, doubt that the President was expected to have the primary role of”–anything; the record of the Constitutional Convention suggests otherwise. The President does not have an implied role of superior powers to the other two branches; nor does his conduct – however described – become a self-immunized vote of absolution. Federalist 10 specifically states that no man can judge himself. Addington’s conclusion would have us believe that that this assertion (that the President has a primary role on something) is one that is true, without any citation or consideration of Federalist 78 which recognizes the opposite: No branch of government has a superior role to any other; rather, they have an equal role – That of protecting the Constitution, even when that domestic enemy is an incompetent clerk, mumbling to himself in the Oval Office.
There is no credible basis to assert that the Executive has a “core power” to do something that is above examination by the other two branches, the states, the people, or international parties.
There is no basis to assert that because another party chooses to assert power and prevent the Executive from doing what has been expressly prohibited (or otherwise not delegated), that that action should or should not be recognized. Rather, there is no basis to assert that the President has any core power which he can legalize by simply asserting an option; where there is doubt on a matter of the Constitution and Jackson’s Test, we may presume that the Executive’s power is at its low point, and that he does not have the power to pretend otherwise.
There is no basis to assert that the Congress cannot restrict the President from doing something, especially in cases where the Executive has no expressly delegated power to trump the law. Congress can and may cut off funds at any time; it is the job of the Executive to assent to that explicit exercise of Congressional power: The power to debate, choose, and select what is or is not lawful. The time to have sought a change to that requirement was not after having been caught; but when there was a clear time to discuss the issues. Given this Executive not only knew the law, but discussed modifications to that law, there is no credible assertion that the law should be struck down. The time to have struck down that law was when the dilemma first surfaced, not this many years after having previously touted it’s benefits in expanding power and supporting national security objectives. A law cannot be both illegal and expansive of power; it can only restrict what should not be done; or permit what might otherwise be rejected. It is impossible for conduct that violates the Supreme law to be ratified, only immunized; yet, the executive cannot immunize himself. However, if this is done, then those who assent to this illegal conduct (both the original violation, and the subsequent illegal self-immunization) have committed violations of their oath. 5 USC 3331 Federalist 78 finds that such thinking and actions, when they violate the Supreme Law shall be struck down; if the judiciary fails to strike down what is not lawful, then they may be impeached for failing to do what should be done: Protect the Constitution for conduct that is illegal, not lawful, prohibited, and clearly beyond what is expected of civilized society: That of assent to the rule of law.
Tif 17
Chapter 4: Constitutional Principles in Court
Notice Addington and others would have us believe that they plan to have their “argument” exposed to the judiciary. That is not credible. Rather, they appear to have every intention of asserting dubious claims to avoid judicial oversight over matters Congress is too lazy to review.
The selection begins with an absurd assertion that the “examples” in the previous chapter “point the way” to a “proper” understanding of Executive power.
This is laughable. It is legal fiction to assert that “those powers have evolved” under the Constitution. Rather, the only thing that has evolved is the RNC-related cover-ups that create more absurd legal argument to hide their otherwise illegal activity. Fortunately, given the RNC stupidity, they leave many trails and are easy to detect.
To reiterate, powers have not changed, increased, or expanded. The only powers this clerk in the Oval Office has is the power to obey the law. Whether he pretends he has a legal option to the contrary remains something he will have to resolve at his Alcoholics Anonymous meeting.
At no time was Congress granted any power to “accept” new powers of the Executive, above and beyond what is expressly in the Constitution. It is legal fiction to argue that because Congress has ‘accepted something” (because of laziness, inaction, or stupidity) that that created a new power, or transferred power from one branch to another. This, if true, amounts to an illegal transfer of power outside Article V.
IT is legal fiction to argue that an Executive exercise of an option, that may be illegal, then creates a new power. There are no inherent Presidential powers; there are only expressly delegated powers; how the President exercises those powers remains a matter for the Congress and Courts to carefully review, especially when it comes to clearly promulgated obligations under the Geneva Conventions.
It is an overstatement for Addington to assert that any “expansion of power” is a “normal practice”. This is not constitutional.
It is a twisting of history to argue that Congressional action to sanction illegal conduct is “counter” to any “understanding.” The only relevant understanding is the single document called The Constitution. History and illegal precedent do not then create a nexus between the Legislature and Executive to trump the Supreme Law.
It is an overstatement to suggest that the Congressional-Executive assent to ever-expanding power has “endured” or is linked to “the beginning.” The Constitution remains in full force. The issue is whether it is or is not followed.
It is legal gobbly goop to assert that there is a “super precedent” of Legislative-Executive assent to agreements which recognize, create, and condone new power; or that an option which could be exercised remains a power which can legally be wielded in contravention to the Constitution.
It is absurd to argue that the Supreme Court has recognized new powers. Rather, there are either legal or illegal options.
Field v. Clark: The cited comment is non-sense. Note carefully Justice Harlan’s comment: He is stating that the Constitution, as measured by an act of Congress could be overruled if the act was incompatible with the Constitution.
However, the problem occurs when we presume that the “Constitution” is something that it is not: recognizing new powers, which do not exist, but are merely options which have not been challenged.
Note the comment after Note 1: Stating that the “The point of this quotation is not that historical usage must be slavishly be followed.” Indeed, but this does not mean that precedents of action trump the precedent of law. An executive assertion of a right to assert an option, however illegal, may not trump the Congressional power to make a law which punishes the Executive for doing something outside his power: Using money that has not been lawfully appropriated; or for spending money on illegal things.
It is an overstatement to suggest that the historical examples provide any legal foundation to justify trumping the clearly promulgated rights in the Constitution. That there may or may not have been external state functions affected during these events is irrelevant. The issue is to what extent the assertion of power, regardless its location, tramples on the clearly promulgated rights in the Constitution.
It is true that the Executive is nothing more than a clerk, especially when it comes to following the as it relates to domestic issues and the Bill of Rights.
It is an absurd statement to suggest that authority “must come from Congress.” Congress is not in any position to provide, grant, or otherwise destroy power. Rather, the only authority is from the Constitution; nothing the Congress or President can interfere with this delegation.
“Constitutional validity of actions” is meaningless. Presidential conduct is either lawful or it is not. It is a false argument to confuse the notion of power and options.
It is legal fiction to assert that the Executive has any implied power. Only Congress has the implied power to make all laws. The Executive has no similar sweeping, broad, and inherent power.
Nowhere does Addington show us which powers – that have not been delegated – are real; rather, they are simply options to assert power. It is not credible to assert that illegal conduct is “central” or “beyond” Congressional language.
Addington would have us believe – without evidence – that an assertion of an option, when not challenged – then becomes an immunized use of power. That is legal non-sense. In the case of Lincoln, at no time did Congress every “grant” him power to do what he did – he simply did it. Lincoln violated the law. This is well understood within the Military JAG community.
Addington fails to make any specific list of “so central powers” that are above and beyond what Congress and the Constitution have stated. Bluntly, Congress may not grant any authority that is not consistent with the Constitution; it is irrelevant that the Executive may wish that they had the “implied” power to do something, even when they are expressly denied that power, or never delegated that power: The power to violate the domestic law.
Any assertion that there is a “constituently protected category” of action is absurd. This is legal fiction. The record clearly shows that the individuals were indicted, convicted, and served jail time in re the Iran-Contra affair. All cases cited to support an illusory “protected category”-argument are flawed and cannot apply in either a foreign or domestic legal issue. Addington’s failure is to assert that a failed legal argument in re foreign affairs, can survive a challenge in the domestic arena, clearly at odds with Jackson’s’ Third Test.
Page 472: Tif 20
It is legal fiction to argue that Congress is disabled on matters which violate the Constitution.
Addington’s problem, in invoking Jackson’s third test domestically, is his fatal admission that he knows well that there is no “indulgence” permitting the President to ignore the law or Constitution and do what he wants to assert various options. Not only Addington falling into a trap, he’s relying on language which wholly contradicts his central argument related to the NSA issue: That the domestic, illegal conduct is something other than what it is: Perhaps related to a possible foreign issue, when Qwest clearly reminds us that the information gathering was directed at domestic targets. Addington’s problem is that invoking Jackson, he’s in an impossible position t reconcile Qwest’s position on AT&T.
They can’t both be correct. Moreover, Addington's problem is that he’s failed to show that Qwest has suffered an appropriate consequences for “interfering” with the “clearly established” power of the President to seize information without a FISA court warrant. We see no record of a consequences on Qwest because the President and Addington know there is no legal foundation to take any action against those who refuse to do what cannot be done: Provide evidence without a warrant, as required under the Communication Act and FISA.
It is irrelevant whether Jackson’s words were or were not invoked by another court. The only issue is what the President did on the NSA issue; and whether the court does or does not lay down guidelines seems lost on Addington: He creates sweeping guidelines to justify illegal conduct.
The problem with invoking the Curtis-Wright case is that it is form 1936, fully 41 years before the FISA. We have since 2000, several examples of where the “precedent of Curtis Wright” was ignored; and the President assented to the FISA. With the NSA, we are not dealing with foreign relations where the President may or may not have a role as a clerk. The issue with the NSA is that Addington has invoked case law in Curtis-Wright which affirms that the President must exercise his narrow, restricted, and limited powers in a manner that is subordinate to the “applicable provision of the constitution.” In the NSA situation, it is no dispute that Gonzalez and Addington both knew the conduct violated the law – they fully planned to suppress FISA court knowledge of the violations by ejecting the cases from the court. But this is a far cry from invoking bonafide privilege or state secrets; rather, it’s simply playing games to avoid consequences for violating the very subordination expected of an Executive to the Constitution.
But Addington doesn’t stop there. Rather than admit he’s got a mess on his hands – in that the Executive has violated the law without a defense – Addington would like to argue using Youngtown and Curtis that the “solve organ” of foreign affairs, enjoys a domestic immunity to Congressional oversight. This is absurd.
Using the direct language on page 472 which Addington invokes, there is on way to go from what has happened to what Addington and Gonzalez are arguing: Addington has cited explicitly language that directly undermines the central thesis: That the President can do what he wants, ignore the courts, and defy the Constitution. Addington cannot explain why, despite the clear case law on page 472 (that Congress can impinge on the Executive) why the Executive would have us believe that the law does not apply, cannot e enforced, does not need to be followed, or that violations of the law are not something that can be discussed. This is absurd.
Fatal to Addington’s defense on the ORCON issue and Libby is Addington’s alleged comment to Libby that the President, when he exposes information has declassified it. Addington clearly wrote: “The President does not have plenary power to do whatever he wants in foreign policy”. This is true as it relates to ORCON, classified information, HUMINT. It defies logic for anyone to argue in 2006 to believe that the President, by violating the law was doing anything other than “what he wants” – something Addington clearly said was not permissible. Yet, what did Libby say that Addington said: That the disclosure amounted to declassification. Absurd.
Before we proceed to the section “The Holding of the Curtiss Wright Decision” there is something very important to summarize:
Whether Curtis-Wright is or isn’t correctly read isn’t the issue at this point. The point is that Curtis-Wright in no way does anything to help the Executive. It is an overstatement that the President has any inherent foreign policy powers: He only has express powers; yet these considerations are meaningless when focusing on the illegal NSA domestic activity.
Here’s the case:
http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=299&invol=304
Addington fatally (once again) twists the language. Let’s note carefully what he said in the Minority Report, and contrast it what was actually in the case.
Addington writes, the Supreme Court “. . . used the concept of excessive, standardless delegation to declare some of the main pieces of the New Deal legislation to be unconstitutional.”
The court never formed an opinion on the issue Addington uses as “Central” to his argument:
“Whether, if the Joint Resolution had related solely to internal affairs, it would be open to the challenge that it constituted an unlawful delegation of legislative power to the Executive, we find it unnecessary to determine.
Addington’s gone from general trend over what the Supreme Court was doing; and fails to point out that this case explicitly refused to comment on that issue.
Again, let’s note carefully what the Curtiss-Wright opinion reminds us, when it comes to foreign affairs: (The same standard, at a minimum, would apply to domestic affairs and the FISA-NSA)
[Emphasis added] It is important to bear in mind that we are here dealing not alone with an authority vested in the President by an [299 U.S. 304, 320] exertion of legislative power, but with such an authority plus the very delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations-a power which does not require as a basis for its exercise an act of Congress, but which, of course, like every other governmental power, must be exercised in subordination to the applicable provisions of the Constitution.
In other words, Addington by invoking the Curtis-Wright case attaches to himself a knowing element of the standards which an attorney should know: It makes no difference whether we are discussing foreign or domestic issues – the Executive must conduct his affairs subordinate to the Constitution. The only way Addington could justify what we have – the violation of the law – was if the precedent of Curtis-Wright, which Addington well knows, was not simply ignored, but turned on its head: We went from a requirement that the Executive assent to the Constitution; to one where violations of the Constitution may be protected from discovery by invoking state secrets.
Utter absurdity.
At this juncture, Addington has a problem:
Title 50: The White House clerk’s duty to report illegal NSA conduct to Congress
Let’s drive Addington’s problem deeper into the rotting argument. Take careful note of the following:
The marked difference between foreign affairs and domestic affairs in this respect is recognized by both houses of Congress in the very form of their requisitions for information from the executive departments. In the case of every department except the Department of State, the resolution directs the official to furnish the information.
Congress isn’t simply “requesting” an update on NSA activities; rather, the domestic obligation of the clear in the Oval office is to report the violations before Congress and the public discover them.
In this case, the Executive, Gonzalez, and Addington not only knew there was illegal surveillance; but they asserted that the illegal conduct was legal. That amounts to a unilateral adjudication, contrary to Federalist 10, prohibiting anyone from judging themselves. Admiral Hayden’s assertion that “this is legal” is cut from the same self-adjudication and has no legal basis nor should be given any deference.
Page 473 – Tif 21
Let’s consider the illusory legal language Addington keeps invoking. A close reading of the Curtis-Wright case yields no such language as “inherent”.
Addington writes, “the Court was saying that President Roosevelt has his own, inherent power to issue a statement on neutrality in the Bolivian conflict”
Nonsense! The court never used the words “inherent power” anywhere. It merely affirmed a far narrower construction.
Rather, the “rule” applies to Congress:
A legislative practice such as we have here, evidenced not by only occasional instances, [299 U.S. 304, 328] but marked by the movement of a steady stream for a century and a half of time, goes a long way in the direction of proving the presence of unassailable ground for the constitutionality of the practice, to be found in the origin and history of the power involved, or in its nature, or in both combined.
Ladies and gentlemen: Do you see how Addington has turned the case on it head, and asserted that the President has “inherent authority”; yet the actual case language recognizes the opposite: Congressional power to make rules, which Addington says are “quaint.”
But to drive it home, at no time is the Court recognizing any “Executive” power; it’s doing the opposite with the other branch:
The uniform, long-continued and undisputed legislative practice just disclosed rests upon an admissible view of the Constitution which, even if the practice found far less support in principle than we think it does, we should not feel at liberty at this late day to disturb.
IT is utter legal non-sense for Addington to have included in the Minority Report any contention that the court’s comments related to the Executive; the express language is narrowly applied only to Congress.
The man isn’t to be believe on anything. Again, the point isn’t what is or isn’t the law; the question is do we believe someone whose writings are completely at odds with a plain reading of the case law?
It takes far too much time to closely examine each point; then jump back and forth between each citation; only to arrive where we started: Addington is a complete moron, he has no credibility, and his arguments are disconnected from the plain text.
How many more times do the Executive staffers have to realize this; how many more times do we have to go through this: Addington has selectively interpreted things that are not simply twisted, he’s doing this with clear requirements that he pretends do not exist; and he’s similarly invoking language out of thin air.
Think back to the notion of Geneva. Addington and Gonzalez argued, “They’re not lawful combatants.” That is legal fiction: The Conventions only mention belligerents.
The point is that Addington invents requirements that do not exist; and ignores requirements that are real. That is not a legal argument. That’s evidence that despite his legal training that he’s incapable of stating reality and reading a simple case.
Who needs that as the chief legal advisor to the Vice President of the United States?
Why are the JAG’s who know well the Military Law Reviews, being shut out?
It’s utterly absurd what is going on, continues to go on, and the non-sense that this Administration would have the public and Congress believe: That everything is “just fine.” No, there is a problem: Addington, Mr. Buffon who cannot comprehend simple case law, is sitting in the Vice President’s Chief of Staff office, spewing forth this non-sense. Fortunately, the staff has figured out that he’s a moron.
But don’t stop there, look at the Minority Report, and review the specific words Addington is saying are there.
It’s as if Addington has thrown the entire case up in the air, pulled out his pen knife, rehashed it, and then assembled the pieces into some bizarre construction wholly disconnected from the original words. We can only wonder why he would bother calling any treaty, “Quaint” when he could have simply asserted it was the work of the Devil, and as blasphemous as “The DaVinci Code.” That is not an argument; it’s smokescreen.
The bottom line is that what’s in the Minority Report, as are Addington’s other memos, are disconnected from a clean trace between established case law, treaties, and the clearly established Constitution.
Chapter 4: Tif 21
Continuing with: "The President as 'Sole Organ' for Diplomacy"
There are situations where the Congress has the power to act in foreign affairs:
http://supreme.lp.findlaw.com/constitution/article02/17.html#f686
Congress can even make rules reversing the Court on issues related to foreign affairs:
http://supreme.lp.findlaw.com/constitution/article02/17.html#f690
9-11: The President fails
The great object and duty of Government is the protection of the lives, liberty, and property of the people composing it, whether abroad or at home; and any Government failing in the accomplishment of the object, or the performance of the duty, is not worth preserving
http://supreme.lp.findlaw.com/constitution/article02/17.html#t681
Addington:
It is one thing to assert illusory powers; it is quite another to “blame the world” when the real blame falls on the President who failed in his duty.
Time and time again we’re told to “put up” with something that violates the law; but what do we have: Excuses for the results. Time to put up, or shut up: Are you going to do your job, or are you going to spew forth more legal non-sense to justify conduct you have no plans to take consequences for when it violates the laws; violates rights; and results in disastrous results. You cannot invoke secrecy to hide the incompetence.
Addington in this section invokes the principles of “sole organ”. There’s a problem. This “sole organ”-role in foreign affairs has some very important constraints: The Constitution.
Note closely, citing Addington’s favorite Curtiss-Wright case, that this assertion of “sole organ” in foreign affairs is constrained by the realities of the Constitution:
[Emphasis added]
It is important to bear in mind that we are here dealing not alone with an authority vested in the President by an [299 U.S. 304, 320] exertion of legislative power, but with such an authority plus the very delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations-a power which does not require as a basis for its exercise an act of Congress, but which, of course, like every other governmental power, must be exercised in subordination to the applicable provisions of the Constitution.
Ref: Curtiss-Wright (299 U.S. 304)
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=299&invol=304
This tells us some very important things:
Explicitly in the Article I Section 8 powers is the Congressional exclusive power to make rules related to the armed forces; and how the laws apply to US agents regardless where they serve in the interests of the Untied States.
Relying on Curtiss-Wright, this simply means several things, which Addington should well know:
One all counts, Addington has recklessly ignored the clearly promulgated statues, Constitution, and treaties which he knows is fully recognized in the Curtiss-Wright precedent.
Fatal to Addington’s argument in the Iran-Contra affair is the explicitly language in the Curtiss-Wright decisions: That the Legislature had the power to make rules limiting what could or could not be done by way of expenditures
If the Joint Resolution had in no way depended upon Presidential action, but had provided explicitly that, at any time between May 28, 1934, and November 14, 1935, it should be unlawful to sell arms or munitions of war to the countries engaged in armed conflict in the Chaco, it certainly could not be successfully contended that the law would expire with the passing of the time fixed in respect of offenses committed during the period.
Again, the court in Curtiss-Wright recognized and affirmed the power of the legislature to make rules limiting how the President could spend money:
Moreover the Court explicitly rejected Addington’s notion that the Executive could ignore Congressional language even on a foreign affairs matter:
On the issue of signing statements, the Curtiss-Wright court explicitly rejected the nation that a Presidential statement or proclamation can trump Congressional language; or that the President does not have the power to revoke the express will of Congress; or that the Court has no role in reviewing the Constitutionality of the Signing Statements:
1. The Executive proclamation recites, 'I have found that . . . “
The court in Curtiss-Wright then went a next step and analyzed the effect of that statement: Did the statement amount to an abrogation?
The point isn’t that the president can or cannot ignore Congress – he cannot – the issue is that it is up to the court to decide whether the signing statement amounts to an abrogation.
In the case of the torture amendment and the other 750+ signing statements, the issue is whether the President essentially stated he did not plan to follow Congressional language, did he actually ignore Congress?
At first blush: The President’s fatal admissions in re FISA answer that question affirmatively: Indeed, his signing statements and his actions explicitly violated the precedent of Curtiss-Wright, which Addington knows.
Again, we are left with no other conclusion that Addington, despite the clear Constitution and precedents in the case law he’s cited, is unable to comprehend case law that he says many “misread”. The simple issue is that Addington cannot read or understand they very case law he and others have invoked in the 1987 Minority Report; and fail to see how the signed report does or does not relate to the events between 2000 and 2006.
Let’s consider another angle on signing statements;
http://supreme.lp.findlaw.com/constitution/article02/09.html#14
Said Chief Justice Chase for the majority: ''[T]he legislature cannot change the effect of such a pardon any more than the executive can change a law.
The President has no power to change the law. Period. If the President wants to “change the law” then Congress does not have to recognize pardons.
Choose. If you want a pardon, then stop your signing statements. If you don’t stop your signing statements, don’t expect anyone to respect a pardon.
Also notice in the Minority Report the following phrases, which (despite the “sole role”-provision) recognize limitations on Presidential power in foreign affairs [Emphasis added]:
Footnote 2 of Curtiss-Wright permits the Congress to make exceptions and suspend terms:
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=299&invol=304#f2
This is not a sweeping power of the President to, in any case, do the same – Congress must authorize the President to deviate. In the case of FISA, and the signing statements, Congress made no such provision. Where there were exceptions, the President was expected to follow specific requirements. This President not only ignored the Constitution, but he even ignored the exceptions which granted him latitude.
What’s Addington’s excuse? Curtiss-Wright clearly and fatally destroys any confidence that Addington competently advised the President.
How do we explain this: Addington clearly rebukes others for “misunderstanding” Curtiss-Wright; yet when it comes to the very situation described in Curtiss-Wright, Addington seems utterly hopeless; “Whatever you want to do Mr. President.”
Addington knows better than to ignore the Curtiss-Wright precedents as they apply to signing statements, Geneva, and the supremacy of the Constitution and Article I Section 8 in re laws and rules governing government agent conduct worldwide.
How do we explain Addington’s result: citing Curtiss-Wright; but then ignoring it. Rebuking others for “confusion” about the case, but then wholly misapplying the rules and doing nothing as illegal acts were consummated.
Where’s the rebuke of Addington?
The point of the Curtiss-Wright case is simple: Inherent in the Constitution are simple rules of logic. These rules flow through the entire US case law. By selectively picking an choosing phrases, but contradicting the core principles -- that we are a nation of laws, to which the President must assent domestically – Addington is forced into asserting case law that may sound supportive; but the full reading of each case clearly shows the underlying principles: That the Constitution is the bedrock, and that all Presidential action must be subordinate to this Constitution. Any action which deviates from that can only rely on a selective reading of the law; and is wholly consistent with the case law. All of it.
You can do this with every case Addington cited: Without exception, you can simply read the underlying principles of the case as they relate to the Constitution, and find clear rules which are wholly inconsistent with Addington’s extraction.
The issue is what is to be done. At first blush there needs to be an understanding by the House Judiciary Committee how a person like Addington could for this many years pump out this much legal non-sense, and remain above question.
In short, what’s needed is a House Judiciary Committee-directed audit of the Executive Department legal memoranda for the simple purposes of:
At this point, it is clear that the divergence between Addington’s comments and the cases is wide. The issue is what is to be done to ensure that when the divergence is wide, and there are abuses, that these are exposed. Clearly, there are issues of privilege. But there is also a higher requirement that the Congress ensure there is a system in place to mandate that the legal community remains professional, competent, and is performing at a level that can be trusted with that secrecy.
The simple problem is that by combining secrecy with creative legal exactions we have the Iran-Contra affair and the Bush Administration’s reckless adventures into Iraq and the NSA illegal activities. IT should not require Herculean efforts to discover the illegal activity; then years of political non-sense to reach the same conclusion: That the attorneys, despite an oath to the Constitution, have effectively asserted non-sense legal language that effectively abrogates the document they swore an oath to.
This is a problem for the American legal profession to address. Until it is remedied – through whatever oversight, sampling, and auditing plan, we are left with one simple conclusion: The American legal profession cannot be trusted to provide competent legal advise to ensure this Constitution remains protected. What is absurd is that the very lawyers who craft schemes to avoid the law fail to face any meaningful adversary that will challenge this action.
On all counts, as with the DoJ raid into Congress, the national leaders in the Congress and ABA refused to act until they were personally affected. That is outrageous. You work for a client – you are expected to put your oath first. Clearly, this conduct doesn’t happen in a vacuum.
What about noisy withdrawals?
Clearly the CIA renditions were not in the dark: Aircraft has to move from the US, transfer funds for fuel, and then engage in various contracting efforts. The issue is how many attorneys who have known what is going on refused to remove themselves?
At this point, we are left with one conclusion: The entire American legal system is ineffective in ensuring that their legal obligations to the Constitution trump all things. Again, it is outrageous that it takes this long to get the ABA woken up. Lives have been taken. Citizens have lost hope. Futures thrown out the window. People have made the difficult decision to pick up their lives, and move from the Untied States on the assumption that things were only going to get worse.
Why is it so difficult for the American legal system to take up the challenge, and assert the rule of law, even on their peers who work for the adversary, and who have clearly chosen to put their loyalty to tyranny and abuse before their obligation to the Constitution/
This is a credibility problem for American lawyers. You dance around as if you’re God’s gift to humanity, but what do American citizens get: Utterly worthless, glacial, and non-sense legal defenses of the Constitution. It should not take this long.
This President and many others have found excuses time and time again to circumvent the law, and make excuses not to follow it. Yet, the toads in the legal community meet with their friends, publicly say, “something should be done” yet – we have the same thing: Congress keeps rubber stamping the appropriations bills; and the judicial appointments.
When are we going to have some impeachments of those who have recklessly defied their oath? I’m talking those on the benches who have assented this tyranny and essentially said, “Hay, we can’t do anything – if the President wants to kidnap people – hay, that’s tough.”
What a load of non-sense. The American Bar Association deserves to be wiped off the map, and replaced with competing organizations that demonstrate they are responsive to the Constitution, not to the pervasive forces of tyranny.
Let’s take a look at the Durand v. Holmes case, where Addington falls into the same problem, in re FISA and the singing statements:
The executive power, under the constitution, is vested in the president of the United States (article 2, § 1). He is commander-in-chief of the army and navy, (Id. § 2), and has imposed upon him the duty to "take care that the laws be faithfully executed" (Id. § 3).
The pattern is this:
You’d think that Addington as DoD General Counsel would have “figured out” that the Secretary of Defense cannot wage illegal war, defy the Constitution, engage in illegal activity, ignore Geneva, or start an illegal war of aggress.
You’d think that.
But let’s go back to the world of Addington: He’s got a job to do – to figure out how to violate the law, and not get caught. So what would you do if you were Addington, and were faced with the following dilemma:
What do you do?
Why, you invoke the Durand case which says,
a principal officer, called the "Secretary for the Department of Foreign Affairs," placed at its head, to "execute such duties as shall, from time to time, be enjoined on or intrusted to him by the president of the United States, agreeable to the constitution
Right there in plain English: Agreeable to the Constitution; not something else; not a “higher duty to the Jeffersonian doctrine of, “let’s ignore the law”-non-sense.
Right there in the very case Addington has cited.
See what’s happened again: Addington has fatally invoked from the Durham Case the very language that would impose a clear duty on the Secretary of Defense to do something:
Let’s think back to the issue of signing statements, the law, and the President’s requirement to stay within the law. Let’s invoke the Durnad case, which Addington cited:
For this purpose, the whole executive power of the country is placed in his hands, under the constitution
Invoking Durand, Addington asks us to embrace the reality that the President must be below the Constitution; but at the same time, we are asked to put that thought aside and magically believe that that rule from Durand – which Addington knows – is not something we’re supposed to believe is real.
So, Addington wants to invoke Durand and put the President below the Construction; but when we’re talking about the NSA illegal activity, suddenly the President is somewhere else, perhaps sitting on a telephone pole, watching the Constitution burn.
Why is Addington asking us to believe that the President can have many positions, yet the Case he cited from Durnad specifically puts the President in a single position? Again, this is Addington’s problem: He’s the one who’s invoked Durand; while at the same time saying that the President can have arbitrarily have a “new relationship” with the Constitution.
Relying on the Durand case, General Hayden is below the Constitution; but Hayden would have us believe that he can be above the Constitution. If this is true, how can Addington explain Hayden’s shifting position: One minute he’s below the Constitution; the next he’s above. Which is it: Above, or below?
Addington can’t make up his mind. If it’s Monday, maybe below; if it’s Tuesday, maybe somewhere else, under neat a rock, or beside a little furry animal.
BY invoking Durand, Addington is on both sides of the argument: First asking us to believe the Durand language that the President is below the Constitution; but then when it comes to “inconvenient laws” that the President is in a new position.
Addington cannot explain how the President can be both above and blow the Constitution; nor can Addington explain who the case that imposes a requirement, and specifies where the President is, suddenly changes and the President is somewhere else.
Relying on Durand, Addington has a problem: Addington wants to defy the case he’s invoked, and put the President above the Constitution.
What Addington is doing (again) is invoking a minor point from a case; and wholly ignoring the fundamental principle: We are a nation of laws.
Let’s consider the problem Addington has in attaching his legal career to the Iran-Contra Minority Report.
Think broadly in terms of the absurd principle being invoked: Addington would have us believe that the President, because he is ‘doing nice things” for people, should have the power to do what he wants to wage foreign wars.
Again, putting aside the legality of that action and whether or not the war does or does not violate the Geneva Conventions, focuses solely on this principle that Addington is asking us to embrace: That the President is a nice guy, and does these (illegal) things to “help us out” while we are abroad.
Fine. Let’s apply that “help us out” doctrine, and invoke the case law language form Durand:
Under our system of government, the citizen aboard is an much entitled to protection as the citizen at home.
This means:
It’s up to Addington to explain:
Addington cannot explain why he’s suggesting that evidence be fabricated to justify a war abroad; while at the same time arguing that rules against torture be ignored.
Rather, if Addington stays those laws and protections do not apply to all, then under the 14th Amendment, those protections cannot apply to anyone – including him. Addington is essentially advocating that the President take (illegal) action abroad, so that Addington’s rights at home are not protected.
Addington cannot explain this, unless he invokes the “law of necessity,” which cannot apply given DoJ Staff Counsel have the time to surf the internet, engage in non-official chit chat with their spouses related to content on non-official websites.
There is clearly no “big emergency” mandating the laws be violated.
Rather, the real issue is that this DoJ and White House staff have a problem: They’ve run out of credible arguments; they can only spew forth more propaganda through the law firms that bailed out Cheney when he was at Halliburton. We’ve already seen what this crew can do when they put their minds to spinning up the propaganda: They smear people like Ambassador Wilson, and then make excuses to ignore the ORCON rules.
Addington was right there in the middle, he spoke to Libby.
On every count, Addington’s legal assertions are not only disconnected from the law; they’re disconnected from reality. By invoking one absurd notion, he’s then attaching with that absurdity a long string of legal non-sense.
The issue is: How does this non-sense rise to such a level that the Congress and public is forced to assent to this garbage; and nothing is done to put this idiot Addington in his place?
The point isn’t simply that the American legal system is worthless; the point is that despite it being well known to be worthless, we have buffoons like Addington who actually believe they’re worth the $70-some-odd dollars per hour that they’re paid to pump out this trash.
Addington is the Chief of Staff to the Vice President of the United States. You could find homeless people, talking to themselves, making more sense than Addington.
But let’s drive home the point further, and point out explicit language in the case which Addington cites that shows Addington should know there is a difference between political and legal issues.
The point of this quote is to show that, unlike a political decision abroad which is discretionary, the President has the obligation to protect rights at home.
Judge Nelson in the opinion (which Addington Cites):
Chief Justice Marshall, in Marbury v. Madison, 1 Carnch [5 U.S.] 165: "By the constitution of the United States, the president is invested with certain important political powers, in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character, and to his own conscience. To aid him in the performance of these duties, he is authorized to appoint certain . . . officers, who act by his authority, and in conformity with his orders. In such cases, their acts are his acts, and, whatever opinion may be entertained of the manner in which executive discretion may be used, still there exists, and can exist, no power to control that discretion. The subjects are political. They respect the nation, not individual rights, and, being intrusted to the executive, the decision of the executive is conclusive
The highlighted text shows that the discretion Addington may wish the executive has in war abroad, is not relevant when considering individual rights at home.
But to drive home the problem with the Geneva Conventions and the abuses abroad, Addington has a problem: By giving a green light to the Secretary of Defense to engage in illegal war, the President is attached to that illegal conduct:
Again, from Nelson, quoting Marbury v. Madison:
In such cases, their acts are his acts, and, whatever opinion may be entertained of the manner in which executive discretion may be used, still there exists, and can exist, no power to control that discretion
The very case which Addington cited in the 1987 Iran-Contra Minority Report is not only fatal to his underlying argument, it completely destroys all legal non-sense he and Gonzalez have spewed forth about torture, Guantanamo, Rendition, and Geneva. Put another way, Addington is stuck in that the case law he’s invoking affirms the following principles, which Addington refuses to accept are real:
Rule: If you read the full case which Addington has cited, you’ll find more legal arguments and language showing Addington has a major problem, is attached to a legal mess, and has no credible hope of keeping his story straight. He’s stood on both sides of the law for too long, that he has no hope of being able to provide a clean story to the Grand Jury.
The point isn’t that you do or do not have a case. The point is that you don’t have to say anything: Every comment Addington makes is connected to a “bigger story” that fatally destroys his legal defense. They very cases which Addington cites, and should know, are completely at odds with what Addington is doing and saying. He’s either incompetent, or reckless in that he’s specifically choosing to ignore specific case language that he’s already well attached to. Addington is stuck in a trap, and Fitzgerald knows this.
Let’s take a step back from the case law for the moment, and merely look at the language in the Minority Report. We’ve already well demonstrated above that Addington is an idiot.
The issue is, now that we know that Addington’s legal arguments are stupid, let’s consider the language in the Minority Report and consider the following issues:
Let’s review, based on a cursory review of the “other story” which Addington ignored in the case law, and review what we know about the President. These are general rules based on the very case law which Addington invoked:
Keep in mind the above rules – which spring simply from the case law Addington has cited – fails to discuss the fatal case law in the Military Law Review, but let’s put that aside for the moment.
Let’s consider the general statements in the Minority Report:
Addington has affirmed in the Minority Report that those acting on behalf of the President are also linked to the President: They are his agent.
Someone who acts on our behalf, and we fail to ensure they follow Geneva, and given them directions that the Conventions are “quaint” isn’t simply being irresponsible or permitting abuses; rather, Addington has given a green light to the following:
How stupid is this? Here we have the Vice President’s Chief of Staff writing memos that give a green light to abuses; and we’re asked to believe he’s doing a “fine job.”
How can this be? Addington is advocating discretion where there is no discretion; and sending green lights to others to engage in abuses; while at the same time that abuse is attaching liability to the Vice President and President.
At the same time, Addington would have us believe that he’s clueless and had no idea what was going on. Yet, the very case law that Addington cited clearly paints a picture of someone who knows how to look things up and should be aware of what is going on.
Addington is someone who is well trained in the law. His problem is that he’s not simply making stupid legal arguments; he’s given a green light to The Hogue to find that the President failed to adhere to his oath; ignored the law; knew the law; and was well advised on the legal issues; and his counsel was in a position to read the full case law and provide him a full picture; and that despite knowing the full legal consequences, this President freely chose to engage in illegal warfare, Rendition, and other conduct which not only violates US law, his oath, and treaty obligations, but is in defiance of the very notion of rule of law itself – something which was rebuked at Nuremburg.
Said another way, the very things this leadership rebukes in others – whatever that is this week – is really about them: The President, Rice, and Bolton regularly chastise Iran on issues; but a plain reading of the case law – which Addington knows well – clearly paints a picture of complete incompetence: They know the law, and they ignore it.
Either Americans can resolve this matter, or other international actors may step into the picture to resolve this issue. This is not about an “attack on America.” This about doing what must lawfully be done to constrained the abuse of power when the local governance has fallen down, failed, and refuses to rise to the occasion.
That’s where the world sees America: It’s systems off governance is non-existent. The problem this present to the American citizens is the real consequences of what Addington and Gonzalez have been advocating: By this President refusing to assent to the rule of law, all Americans are now subject to lawful retaliation for the abuses this President has committed, and Americans have refuses to distance themselves from.
You cannot claim you are a system of laws, then abrogate Geneva. When you ignore Geneva, other nations may lawfully do the same: Ignore the same provisions which you well know, but explain away as “Quaint.” You can’t have it both ways: You can’t argue that you are a nation of laws, but then compel the world to bow down to your abuse; all the while you refuse to enforce and follow the laws you agreed to follow.
Americans do not have a system of credible internal governance. The problem is that under the UN Charter, other nations may lawfully intervene, especially when that governance problem beings to spill into other arenas. The US precedent for invading Grenada, Iraq, and Haiti was the “governance” issue; is the US going to say that this “governance” issue does not apply in the US? Of course, but that does not mean that there is a stable system of governance. It merely means that idiots like Bolton and Addington are working with others to create the illusion of more fantasy. But the plain reading of the Iran-Contra Minority Report clearly shows their pattern: Deception, absurd arguments, and statements disconnected from reality and the law.
Let’s take another look at the Minority Report.
The report fails to credibly “show” anything, other tan they are good at citing language that, when read in full, is contrary to their interests. Stupidly, they signed the report.
It is not “obvious” for them to say anything. Rather, the “obvious” conclusion is that their “obvious” statements are to the contrary: Delusional.
It is an overstatement to say that the President is or isn’t absolutely anything. Rather, there are important qualifications, subject to laws and treaties.
There is no basis to assert that a specific “view” asserted in the Minority Report is real.
Nor is there any merit to the contention that a view is or is not “challenged” or “credible.”
Whether a phrase was or was not first used in a document is meaningless, especially when the full document contradicts Addington’s core legal argument.
There is no basis to believe that a concept is a real one, or that the words appropriately crate an absolute rule which Addington and the Vice President invoke.
There is plenty of case law, beyond the recent history, which directly challenges the notions asserted in the Minority Report; one need only read the full Constitution, and Federalist Papers.
C&S Airlines v. Waterman Corp [333 U.S. 103 (1948)]
http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&vol=333&invol=103
Again, Addington does not let us down in this case, and asserts a “concept”
Major problem: Addington’s case actually says the opposite, and undermines his argument, showing the President’s conduct must be consistent with the aim of Congress:
It would carry out the aim of Congress to guard against administrative action which exceeds the statutory bounds. It would give effect to the interests of both Congress and the President in this field.
333 U.S. 103
http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&vol=333&invol=103
In the case of FISA, the “aim” of Congress was to ensure, respect, honor, and affirm the very things that Addington said should be ignored:
IN so many words, Addington by saying, “Justice Jackson also referred to the concept.” is an overstatement, false, and completely disconnected form the full language to the contrary:
Addington fails to cite the full language which contradicts his core premise: That the Executive has the ‘sole power” in the things he’s talking about. Clearly, in cases where the law is clear, the Executive has no power to ignore that requirement.
Recall the Constitution and Judicial opinions in the context of Federalist 78: Nobody is above the law; and the courts may strike down as void anything that is contrary to the law.
What does Addington do, by invoking this case? He ignores the following
Judgments, within the powers vested in courts by the Judiciary Article of the Constitution, may not lawfully be revised, overturned or refused faith and credit by another Department of Government.
Also fatal to Addington is the action Congress took on the FISA issue:
Congress has set up a comprehensive scheme for regulation of common carriers by air.
Once Congress sets up a mechanism to regulate that activity – as is the FISA court – the President has no power to trump that system.
This means that the President may not “shop around” for favorable legal reviews; nor once the court finds that the President [as it did in Nixon] does not enjoy absolute privilege, the President may not ignore that precedent.
There is a special consideration when it comes to Judicial Review: Whether the information was or was not properly withheld.
Again, Justice Jackson
It would be intolerable that courts, without the relevant information, should review and perhaps nullify actions of the Executive taken on information properly held secret.
This means that if there is an improper withholding of information, the courts do have a role.
Also, keep in mind, as we discuss the domestic surveillance issues on a matter that congress clearly discussed, we are not talking about a foreign policy issue, which the court has no role:
But even if courts could require full disclosure, the very nature of executive decisions as to foreign policy is political, not judicial.[Jackson, 333 U.S. 103]
Again, by invoking Jackson, Addington has shot himself in the foot when it comes to the domestic NSA issues:
Addington is not being consistent. Again.
Let’s also consider something else from the Jackson opinion: That of delegation of power.
Congress may of course delegate very large grants of its power over foreign commerce to the President.[ 333 U.S. 103]
In plain English this means that the President does not acquire power; he is merely delegated that power, and can have that power revoked. The key is to recall the original issue: Congress has the original power, and has not created anything new. This means that the Congress, as the source of that original power, may modify the delegation.
As this applies to FISA: It is simple. Congress has no power to engage in warrantless surveillance or violate the Constitution. But it does have a power to [a] make rules that strike a balance, [b] include the courts, and [c] ensure the information is secret.
The point is that this President agreed to follow those procedures, and modified them; his prior conduct showed he assented to FISA, was fully informed, and accepted the expanded option to do something, but in no way did this create a new power to then violate the law by ignoring the court and Congress.
Congress created a system to solve a problem. BY ignoring that system, this President became the problem.
Again, the words of Justice Jackson remind us that there can be solutions, the issue is whether the President is part of the solution, or part of the problem:
The court below thought that this disability could be overcome by regarding the Board as a regulatory agent of Congress to pass on such matters as the fitness, willingness and ability of the applicant, and that the Board's own determination of these matters is subject to review.
Once the President ignored the Congressional language, he’s ejected both the Congressional delegation, and the protection of the Court. Rather, the President has defied the very mechanism, and ignored what could have been valuable input from the other two branches on how the issues might have been resolved in secret.
This President and Addington chose to ignore the law, defy the delegation, and manufacture legal non-sense. They can’t be sure of very much, other than that they will seek new ways to spew forth non-sense.
What Addington and Gonzalez have incorrectly done is argue the “foreign power”-argument with the hopes that everyone think about “power”. This is the deception. Their aim is to then invoke the “ruse of power” as the false premise to exclude the courts, and invoke the following, from Jackson, as it relates to power:
They are decisions of a kind for which the Judiciary has neither aptitude, facilities nor responsibility and have long been held to belong in the domain of political power not subject to judicial intrusion or inquiry
333 U.S. 103
http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&vol=333&invol=103
Clearly, the courts do not agree that they have no role, especially when there is no compelling showing that the issue is simply power and foreign affairs. When we are dealing rights, domestic issues, and the law, we have diverged from the issue of power. This does not mean that power does not exist; rather, it simply means that there are far larger issues and factors that have to be considered.
Also, it is a false premise to argue that the President is or is not asserting a power in re NSA and FISA; rather, the issue is that he’s dealing with domestic rights. Again, Jackson’s Third Test from Youngstown reminds us that, when dealing with domestic issues, the President’s power is at its lowest point.
In broad terms Congress did not create the Administrative reviews within either DoJ or DoD. These are secret creatures of the President, and he as not delegated this power. It may be a novel; but hit is not lawful nor consistent with Article 1 Section 8 that delegates the exclusive rule making power to the Congress unless that authority and power has been delegated. Given Congress was surprised by the NSA deliberations, no case can be made to argue that Congress intended to delegate this FISA-related function; rather, Congress intended for FISA to be followed.
End 473, Tif 21
474 Tif 22
One of the Surprising things
about the Minority Report is the
consistent diversion from reality.
Let's consider the Marbury Case
cited and discussed on page 474.
MARBURY v. MADISON, 5 U.S. 137 (1803) 5 U.S. 137 (Cranch) http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=5&page=137
[ ] Recollect: The case actually
argued the opposite: That the
President did NOT have the power
to exercise this discretion; and
the withholding of the Commissions
was not lawful.
Let’s note closely what Addington has done with the citation. There’s a key concept he’s consistently removed from the quote, and it is very important.
The key concept that Addington has removed is the term: “Political.” This is different than power, especially when it comes to matters of criminal law, domestic policies, and the Constitution.
Let’s consider the two versions. First, let’s consider the actual text from Marbury; then we’ll compare it with the version Addington displays.
Marbury V. Madison: Original Text
By the constitution of the United States, the president is invested with certain important political powers, in the [5 U.S. 137, 166] exercise of which he is to use his own discretion, and is accountable only to his country in his political character, and to his own conscience. To aid him in the performance of these duties, he is authorized to appoint certain officers, who act by his authority and in conformity with his orders.
In such cases, their acts are his acts; and whatever opinion may be entertained of the manner in which executive discretion may be used, still there exists, and can exist, no power to control that discretion. The subjects are political. They respect the nation, not individual rights, and being entrusted to the executive, the decision of the executive is conclusive. The application of this remark will be perceived by adverting to the act of congress for establishing the department of foreign affairs. This officer, as his duties were prescribed by that act, is to conform precisely to the will of the president. He is the mere organ by whom that will is communicated. The acts of such an officer, as an officer, can never be examinable by the courts.
But when the legislature proceeds to impose on that officer other duties; when he is directed peremptorily to perform certain acts; when the rights of individuals are dependent on the performance of those acts; he is so far the officer of the law; is amenable to the laws for his conduct; and cannot at his discretion sport away the vested rights of others.
The conclusion from this reasoning is, that where the heads of departments are the political or confidential agents of the executive, merely to execute the will of the president, or rather to act in cases in which the executive possesses a constitutional or legal discretion, nothing can be more perfectly clear than that their acts are only politically examinable. But where a specific duty is assigned by law, and individual rights depend upon the performance of that duty, it seems equally clear that the individual who considers himself injured has a right to resort to the laws of his country for a remedy.
Addington Deletes Key Phrases
Here’s Addington’s version, which includes in his version italics. [We’ve struck out the text he’s removed, and italicized the text that he’s italicized.
By the constitution of the United States, the president is invested with certain important political powers, in the [5 U.S. 137, 166] exercise of which he is to use his own discretion, and is accountable only to his country in his political character, and to his own conscience.To aid him in the performance of these duties, he is authorized to appoint certain officers, who act by his authority and in conformity with his orders.
[Paragraph-hard return removed; suggesting that the paragraph was long]
In such cases, their acts are his acts; and whatever opinion may be entertained of the manner in which executive discretion may be used, still there exists, and can exist, no power to control that discretion.The subjects are political. They respect the nation, not individual rights, and being entrusted to the executive, the decision of the executive is conclusive. The application of this remark will be perceived by adverting to the act of congress for establishing the department of foreign affairs. This officer, as his duties were prescribed by that act, is to conform precisely to the will of the president. He is the mere organ by whom that will is communicated. The acts of such an officer, as an officer, can never be examinable by the courts.
But when the legislature proceeds to impose on that officer other duties; when he is directed peremptorily to perform certain acts; when the rights of individuals are dependent on the performance of those acts; he is so far the officer of the law; is amenable to the laws for his conduct; and cannot at his discretion sport away the vested rights of others.
The conclusion from this reasoning is, that where the heads of departments are the political or confidential agents of the executive, merely to execute the will of the president, or rather to act in cases in which the executive possesses a constitutional or legal discretion, nothing can be more perfectly clear than that their acts are only politically examinable. But where a specific duty is assigned by law, and individual rights depend upon the performance of that duty, it seems equally clear that the individual who considers himself injured has a right to resort to the laws of his country for a remedy.
Analysis
1. Sleight of Hand: Changing the focus from politics to power; then applying the Marbury Conclusions to the unintended application: Constitutional-Power issues
Addington has removed the key phrases related to the political factors. However, the way he’s used the quote, it implies that the issue is something different: Power. The distinction may appear subtle but is very important. Power is something that comes from the Constitution, which all branches of government have a say; political matters are issues which the court and Congress have no real say.
Thus, by deleting the comments related to political matters, Addington would have us believe that Marbury is talking about a matter of power; and then using Marbury’s “conclusions” to have us believe that Marbury recognized Addington’s contentions about power, when in truth Marbury’s case is the opposite: Merely commenting on a political issue.
Going the other way, given that Addington wants to confuse power-and-politics, Addington is taking the Marbury comments about “politics” – as they related to a “hands off approach” – then twisting the application, and suggesting that the “hands off approach” relates to the “no role that the Congress has in overseeing these issues of power.”
This is called propaganda, which Hitler did well. Addington is simply using word magic to confuse the issue; then extracting selective comments to justify the opposite conclusion that what was actually argued. What is more troubling is that the American public is being asked to believe that the “legal argument” the courts and Vice President are reviewing are credible representations of reality.
Moreover, given their absurd legal constructions, the Vice President and the propagandists at Borker Butts then use a twisted notion of that absurd construction to then “blame” those who raise the issue, asserting (in so many words) that they’re making a big deal about nothing, and “there they go again, litigating.”
Indeed, it is appropriate to litigate when the likes of Addington and Cheney are using non-sense to avoid accountability over illegal conduct; while then shifting the “focus” to those who dare notice reality. This is classic RNC-Nazi propaganda: Make it look like everyone else is the problem, all the while distracting attention from the original RNC abuse of power, and violation of rights.
2. Let’s consider the specific comments about the Legislative acts, which Addington deletes, and is similarly fatal in re NSA, and Cheney’s recent attempts to stifle Specter’s investigation into the matter.
Here is the deleted text, which Addington does not include from the Marbury case, directly showing that the Congress has the inherent authority to impose its will on the Executive officers and Presidential agents, ministerial duties as are FISA requirements:
But when the legislature proceeds to impose on that officer other duties; when he is directed peremptorily to perform certain acts; when the rights of individuals are dependent on the performance of those acts; he is so far the officer of the law; is amenable to the laws for his conduct; and cannot at his discretion sport away the vested rights of others.
At this point, it would appear to be an open and shut case on the Cheney-Specter debate: There is no issue of power; nor does Marbury recognize any “power” of the Executive; rather, Marbury affirms Article 1 Section 8 powers of Congress to make rules, which the Executive and all officers, agents, and attorneys have to follow.
The next step, is to then imply that the President has “discretion” on this matter; yet, the real issue is that the discretion is narrowly applied to political issues; yet in no way does “discretion” as it relates to Constitutional issues become a green light to violate the law or Constitution.
Addington in the Minority Report, then refers to very vague “other things,” without specifying what those are, how they are or are not different form the political-vs.-power nexus; nor does he explain that the discretion is something which is narrowly applied to political matters, and cannot be broadly applied to clearly unconstitutional conduct of agents which defies the law.
The bigger problem then becomes when these constructions are then applies to the domestic political issues. In so many words, what Addington and Cheney have done is created legal fiction by asserting that the Article 1 Section 8 “implied powers of Congress” are also something that the Executive has. Then, in taking this “discretion” (that is applied to political issues), sliding the focus from foreign affairs, and asking the public to accept that that “discretion on power in foreign affairs” also “must” exist at home on domestic-power issues.
This is absurd. Power is not unlimited; and there is no implied right of “discretionary use of power which Congress cannot review,” especially on the domestic front.
Let’s consider the specific text related to this sleight of hand in the Minority Report, and you’ll quickly see the diversion, and how this false argument was then used as the basis to justify an essential “do what we want domestically”-argument, which the RNC membership (naively) embraced as “connected” to case law. Again, the point is that this is no different than the propaganda which Hitler used, and merely evidence that Addington despite knowing the law, has selectively crafted the words in the Minority Report to support legal fiction, which others then relied on as the “legal foundation” for otherwise absurd legal arguments.
Here’s the textBold added:
What follows from Chief Justice Marshall’s opinion in Marbury is that if Congress cannot prevent the President from exercising discretion over a particular matter, neither may it prevent the President’s personal staff> or the National Security Council, the Departments of State and Defense, the Intelligence Community, or the President’s ad hoc personal representatives, from performing the same tasks on the President’s orders and in his own name.
The point as it relates to FISA and the NSA is that the laws of war explicitly state what is or is not to be followed. Moreover, the Constitution does apply at all times. That FISA may or may not have been ignored is irrelevant; the Constitutional protections, whether the FISA court was or was not involved, do not suddenly get waived because the President has invoked “Marbury v. Madison.”
What needs to happen is a fully accounting of the entire legal arguments, memoranda, and other legal non-sense Addington and others have used in re DSM, the Iran war preparations, and the other activities related to the abuse of power on matters of rendition, torture, and illegal war in Iraq.
The pattern will be clear:
Let’s consider another RNC trick well known. If you’re caught, you down play the activity as merely minor. If needed, you excuse the auditors, and yell directly at those who have the evidence and you excuse the matter as something that is trivial.
Let’s look at what Addington has done, when he explains away the illegal conduct – this lesson should not be lost when it comes to the public comments Cheney is making after Specter and the White House Chief of Staff discuss the issues, after their planning meetings at Camp David. They have a real problem on their hands because their meetings and strategy sessions have been penetrated; and the public well knows they’re using the same non-sense legal arguments in 2006 to stonewall Specter.
Here’s the sample of what you can expect as it will be applied to the NSA-FISA violations on the domestic front:
Many, if not all, of the actions by representatives of the U.S. government that have been alleged to have run counter to the Boland amendments were essentially forms of information sharing and diplomatic communication.”
Normally, at this point we’d cut off the quote and encourage the public to throw this issue back at Addington and the Vice President, but there’s more to the story. Here’s the remainder of the quote, which you well see directly parallels the fabricated non-sense which General Hayden invoked when he appeared before the Senate. The point is simply that the players in this conspiracy have deluded themselves into believing perverse notions of what the law is or is not:
To the Extent that such activities by the NSC staff, CIA, State Department or Defense Department were covered by the Amendments – and we shall argue that many were not—we believe the activities were constitutionally protected against limitations by Congress.
To be clear, there’s one final sentence which deserves a special comment; that will follow shortly.
Here’s the final sentence which shows how Hayden, Addington, Gonzalez and the Vice President have twisted the Marbury Case into the “justification” to abuse power, all the while failing to consult with Congress on the real issues: That these are matters of politics, Congress does have a role to play; and that the conduct falls well within the purview of Congress to hold open investigations on the legal arguments
The executive was not bound to follow an unconstitutional effort to limit the President’s powers.
Based on the above, there is no reason to have a discussion about the technical NSA details. Rather, the real issues need to focus simply on the case law which Addington and the Vice President invoked to justify the activity; and then force Addington to go line by line in the memos to show that there is a trace between what he’s arguing, and what the Marbury case is actually showing. You will quickly find that there are numerous selective deletions.
Let’s go over a sample of questions – which are wholly unrelated to classified information – which Senator Specter, the media and others can easily discuss, and form adverse inferences. Again, given Addington’s demonstrated practices of twisting the law and words, he now has the burden of proof to justify confidence in the assertions the Vice President is making to Specter over the “classified” nature of the discussion with the phone companies. Again, the point is that discussion is well connected with other open source diagrams related to the timing and legal issues; and these have already been well known to show there is a timing issue on the phone companies discussions on the legal argument. [See the sample diagrams]
Here are the questions, totally unrelated to classified information. Included is a sample credible answer, which Addington knows is the real answer; and a “measure of merit” – a listing of the specific points you will want to ensure they are arguing and addressing each answer. The goal at this point is to create a ready checklist for the Members of Congress to carefully assess the answers and responses from Cheney and Addington on this issue.
Credible Answer
The case law invoked to support the illegal, domestic surveillance activities and other unconstitutional conduct have been selectively twisted. We’ve deliberately confused issues of power and politics. Where there were specific prohibitions against doing something, we have invoked the principle of “discretion”, even though that discretion as it is used in Marbury is only related to a political discretion issue. Nowhere can we cite or point to explicitly language that credibly shows anything amounting to an Article 1 Section 8 –like “discretionary power” which matches what we would have you believe exists in the Executive Branch. There in no implied authority for the President to violate the law. Rather, the ORCON rules which prohibit classifying illegal conduct and incompetence, have been violated. We are incompetent, and our legal arguments are disconnected from the fundamental law of the land. We have no intention of every assenting to any judicial review because, as was the case with Addington and the FISA court, we are not really interested in the case or prosecution; we are simply interested in asserting unchecked power. If we were really serious about the case and doing the right thing, we’d let our legal arguments stand the test of daylight. But given we are buffoons, morons, and devoid of any legal foundation, the only thing we can do is hide ourselves and pretend that what we wrote in the 1987 Minority Report is never closely examined. Fortunately, the printed pages in that document do not include the text, so the words that we wrote are rather difficult to find. But even if you do read it, it will take you a really long time to wade through our legal cess pool: We’ve done the same: Selectively cut and paste to arrive at legal conclusions that are disconnected from case law. In the end, we threw this at the buffoons working for Hayden, and they gobbled it up. Hopefully the FBI agents who are looking at the Joint Staff procurement process over the Thunderbird Maintenance Contract wont think about connecting the dots and realizing that the JROC process rejected the options were are cruelly employing. Would anyone really think to consider that the JROC process, which is an openly understood process, could produce redacted documents showing that the currently used methods (even though they were classified) were known to be illegal, mandating a technical solution, which we subsequently botched?
Measures of Merit
[ ] Does the response include a specific legal citation
[ ] Has the citation been correctly quoted
[ ] How does the citation compare with a plain reading of the case
[ ] If one were to simply review the case as a simple text document, would they understand the Conclusions that Addington and Cheney would have us believe are related
[ ] Which issues or analogies is Addington invoking to have us believe that the specific case is or is not relevant
[ ] Which anecdotes, which the RNC points to tin the DNC history, has the RNC twisted to appear to be “just the same”, yet the actual situations are different
[ ] Does the RNC openly admit that their use of analogies and other examples are merely red herring to confuse the issue, and distract attention from their problem
Credible Answer
We are sorry, we deliberatively mislead you with the intent to create power which does not exist. We had hoped to redraft the Constitution, and crate an Article 1 Section 8-like power so that the Executive Could invoke this principle at home and do what we want on the notion that it was, “Necessary and proper” to do what we wanted without oversight.
The specific line that you refer to is related to our attempt to confuse the issue, and make Congress think that the Court was affirming something that it was not. This was a deliberate, reckless, and wholly negligent act on our part, to which we have no excuse and are willing to throw ourselves to the mercy of the court, and RNC membership to admit that we have been lying to them since 1983 over the Iran-Contra affair, and the subsequent non-sense about Congress.
Overall, our aim was simply to create non-sense, confuse others, and get the right to engage in more abuse. We did not think that anyone would find out about our planning operations in Iraq, and how we use that form to train to then use those tactics back at home.
We did not think you would find out about the warrantless searches, and the warrantless detentions. Even though the CIA aircraft are located in America, we didn’t think you’d realize we put Americans on those planes, and they are dead. We killed them.
We deleted the line from the Marbury case because we wanted to broaden our scope of illegal conduct. Rather than simply confining our abuse to Honduras as we did under Negroponte, we wanted to do that worldwide, even against American citizens at home. Our goal was simply to abuse those who dared to think about reality; and then when we got into real trouble we could only engage in more lies before the Grand Jury. We are truly sorry we lied to Patrick Fitzgerald; and that we have committed fraud upon the court for our illegal invasion into Iraq, and violation of our international obligations. We are willing to freely go to The Hague and face the full consequences for our war crimes against humanity, the American people, but most of all our blatant attack on and disregard for the US Constitution. IT was all lies, fraud, and an utter sham. We didn’t think we would get caught.
Measures of Merit
[ ] Does the response include an acknowledgement that the case law has been conveniently cited to arrive at a perverse outcome
[ ] Does the response include an apology for confusing the issue
[ ] Does the information contain an explicit statement of contrition, and a plan which will be presented to Congress to ensure that this kind of legal non-sense will not occur
[ ] Does the response include an acknowledgement that the method to internally cross check legal counsel memoranda has broken down; and that they need help from Congress in evaluating the credentials and work products of those they have on staff in the NSA, CIA, DoD, and DoJ
[ ] Does the statement include a specific acknowledgement that the “urgency” issues (behind the calls for more DoJ staffing) are wholly disconnected from actually DoJ manpower utilization data, which clearly shows that the internet access and usage is not for official business
Credible Response
We stonewalled in 1987, and are doing the same in 2006. Yet, despite our control of Congress, we are unable to compel all to assent to our illegal options. Our core problem is that the Downing Street Memo clearly shows that we are willing to deceive Congress. The Concluding remarks on page 477 were never meat to be applied to us. We’re sorry we have to eat our words.
As we said in 1987, we need an investigation. However, given the gravity of the war crimes, we are rather reluctant to openly admit our guilt. Our New York based attorneys, who have had their records intercepted by GCHQ, are not clear on the legal issues, and are stalling for more time. We hope to delay things until after the November 2006 election. We’re not sure it’s going to work. Even the Wall Street journal says the DNC is going to control Congress, so that means you can count on an impeachment investigation.
As you well point out, there is a gross disconnect in the words in 1987 to what we are now doing. We are arrogant, and do not believe that the standards we threw around (without really thinking about) would be applied to us. As we stated in 1987, we do not think there is needed legislation; rather, there is a needed change in the Constitution and law: Explicitly statements that the Congress, and only the Congress, has any Article 1 Section 8 implied power to do what is “necessary and proper.”
Although, in theory one should not have to make a low prohibiting one from dong what they have not been given the power to do – that is, defy the law, hide secrets, and destroy the Constitution –- those words needs to be put in there explicitly so that future buffoons like Gonzalez and Addington can't twist a case into something that says illegal activity is “Just fine, even if you hide it from the FISA court.”
Overall, we freely admit that there needs to be something done to fix this Constitution, our way of life. A first step in that process will be for us to admit on National Television, before the Grand Jury, and on the Daily Show that we are utterly moronic, incompetent buffoons, and that it is true – 95% of our DNA matches a monkey. Should we be so lucky to dine on bananas covered with lemon juice as we are publicly, lawfully flogged in a reciprocal manner as was done in Honduras under Negroponte, and in the black sites in Constanta, Romania. We will gladly bring the salt upon which you can grind into our open sores as we are publicly humiliated for our contempt for American rule of law. There is no need to bring a stretcher, we will crawl.
Measures of Merit
[ ] Do they discuss the difficulty with getting the information.
[ ] Are they clear that they are not consistent
[ ] Have they accepted responsibility for what they have done
[ ] Did they explicitly state the real reason they engaged in this obfuscation?
[ ] Have they explained why they did not want legislative action in 1987?
[ ] Have they discussed the reason for calling for investigations in 1987, but now that is not acceptable in 2006?
[ ] have they explained why the call for an investigation in 1987 was required; but suddenly the same legal arguments cannot be discussed?
Credible Response
There is no way to reconcile our inconsistencies, other than to conclude we are criminals, hiding things.
Measures of Merit
[ ] Do they include recommended changes to legislation to solve the problem
Credible Response
Anything that will justify anything. IT doesn’t matter. We twist it. We didn’t think you’d actually check.
Measures of Merit
[ ] Do they include a copy of the Highlighted Chadra Case
[ ] Do they show how the Minority Report ignores the central points of the Chadra Case
[ ] Do they admit how the Chadra case undermines their legal arguments on signing statements, secrecy, rendition, torture, and the Geneva Convention.
Credible Response
There is no treason. Please, revoke them.
Measures of Merit
[ ] Do they include a list of all Congressional delegations, programs, and activities which should be transferred from Executive oversight back to Congress
[ ] Do they include a key to all the background data, archives, and include a file plan to find the records.
[ ] Do they have dedicated staff to assist Members of Congress in organizing the information.
[ ] Do they include the working papers of all internal audits, and a trace between the responses given to the GAO and IGs; and demonstrate that the audits were or were not conducted per GAAS and GAGAP.
Credible Response
There is no reason to believe us. We can only offer you our promise. Here is outs signed promise, which we will assent to if you hold us to it. If we fail, we promise to resign and admit to many crimes of malfeasance.
Measures of Merit
[ ] Do they demonstrate a plan to assent to the Constitution
[ ] Do they assent to a plan to hold the FBI agents [SA Thibault] who allegedly throated to invade the sanctity of Congress for violations of some sort of meaningful sanction.
[ ] When will Special Agent Thibault appear before congress to explain what orders and directions he was given
[ ] What is Special Agents’ Thibault’s record of interaction with the Department of Justice OPR?
[ ] What is DoJ OPR’s plan to review the FBI MAOP, and provide to the House Judiciary Committee a report of how the conduct does or does not fit in with the training at Quantico; the disciplinary problems; and what lessons learned will be introduced into the Quantico School house.
[ ] Does DoJ OPR have keys for no notice visits to Quantico to check that the FBI agents in training are actually learning the material?
[ ] What no-notice field visits are being scheduled to test whether FBI agents are or are not able to handle these situations?
[ ] How are the FBI agents induced to believe they can abuse a walk-in; or led to believe they are dealing with a buffoon, but actually interacting with an undercover Congressional staffer, who is wired, on video tape, and has fully coordinated the visit with the FBI informants located inside Camp David, who have provide copies of the files before they were “shredded”?
Credible Response
There is no reason.
Measures of Merit
[ ] Do they admit they have acted illegally.
[ ] Do they admit that they are not discussing issues that Congress has the inherent power to acquire, understand, review, and otherwise question?
[ ] Do they comprehend that there are three stats poised to launch impeachment proclamation forcing Congress to vote to stop an investigation on something Cheney previously said should happen?
[ ] Have the provided a list of targets for subpoenas?
[ ] Are they aware of the dates they are scheduled to appear before the Grand Jury?
[ ] Have hotel and travel arrangements been finalized to ensure they appear before the Grand Jury on time?
Credible Response
There is no reason.
Measures of Merit
[ ] Do they include memoranda to the phone companies.
[ ] Do they include copies of the case law
[ ] Do they show how the case law was twisted to arrive at one conclusion.
[ ] Do they include a copy of the Qwest response?
[ ] Do they include sample discussion notes on the telecom meetings between DoJ and Qwest related to Quests’ contention that the proposed data transfer was not legal?
[ ] When was DoJ IG informed of Qwest's concerns?
[ ] When did DoJ IG provide an “urgent” message to the Congressional Committees?
[ ] Do they explain why they did not challenge Qwest?
Credible Response
We provided legal non-sense. We randomly picked a case, twisted it to make it look like something it was not, then waved it screaming, “This is a work product form a distinguished graduate from Duke.” Our problem was that retarded bloggers actually checked, and figured it out: Addington is an idiot.
Measures of Merit
[ ] Do they cite specific case law
[ ] Do they show the specific cases in the legal memoranda
[ ] Do they include the memoranda from the CIA, NSA, DoJ, and DoD
[ ] Do they name the specific phone company individuals they sent the memos to
[ ] Do they overlay and present to Congress a simple diagram showing how the phone company correspondence compares with the information and meetings Gonzalez and others had with Congress over the FISA changes
[ ] Do they include notes on the other views that were expressed
[ ] Do the explain how these other views were handled
[ ] Do the explain how the other views, not incorporated into the final work product, were handled
[ ] OD they explain that these work products remain available for their respective IGs to review
[ ] Do they explain that the IGs from DoJ, NSA, CIA, and DoD could compare notes to find a pattern of conduct that is at odds with eh statutes
[ ] Do they explain why there were no urgent messages from the IGs to the Congressional Committees on these bizarre readings of the case law, and the likelihood there was illegal conduct going on
[ ] Do they explain why there was no notification to Congress of the illegal activity, as required under Title 50?
Credible Response
There is no reason to believe what we say. Our legal arguments are non-sense. Our case citations are no better that the non-sense in the Iran-Contra Minority Report.
Measures of Merit
[ ] Do they provide the names and address of the phone company personnel they discussed the issues with
[ ] Do they provide a clear doorway to the DoD auditing agencies and on-site personnel who have real-time access to any document in the phone company legal archives
[ ] Do they point to the contract line items that include audit rights
[ ] Have they given the FBI a call, to notify them of the specific files to look for, and the date that the phone companies archive and send the files to a backup location
Credible Response
Because what we are doing is illegal, as Senator Specter has correctly concluded.
Measures of Merit
[ ] Do they state what even the most stupid blogger can figure out: This activity illegal
Credible Response
We prefer to yell loudly, and wave our hands. We want to be penguins after we are indicted for war crimes.
Measures of Merit
[ ] Do they include a clear showing that they understand: Showing a link between the original case law; identify the words they delegated; and physically diagram the sentences to show they comprehend the word use
[ ] Is there a line-by-line comparison of the original case, to their cited version
[ ] Can they show how the legal argument shifted from compliance and rule of law, to something resembling a free for all
Credible Response
The Vice President and Addington are not being responsive because to provide a response would admit what the Grand Jury and Fitzgerald already know: We are criminals. However, the real reason that we have provided no trace between our legal arguments and the original case law is that there is no linkage. We can’t explain it – we just yell louder. “Look, up in the sky, it’s Superman!”
Measures of Merit
[ ] Do they answer the questions
[ ] Do they admit their contempt of Congress
[ ] Do they admit their contempt of 5 USC 3331 and US Constitution
[ ] Do they discuss the trace between the case law and the arguments they provided
[ ] Do they provide a full accounting of the dates that the legal traces were provided
[ ] Do they discuss whether the Members of Congress were or were not allowed to review the information, think about it, then submit questions after consulting with their legal counsel
[ ] Do they explain why it is “so easy” to quickly find information in Iraq about things that sound too good to be true [he fell off a stretcher?!?]; but cannot provide a credible explanation why it takes ‘so long” to get a straight answer on a hunting accident.
Credible Response
There is no reason to believe a criminal. We are liars. We confess to everything. Check our e-mail. The gaps are related to our deletions. We cannot explain the other information which GCHQ has.
Measures of Merit
[ ] Do they provide a clear copy of the Minority Report
[ ] Do they include correct citations of the Minority Report
[ ] What selective readings of the Minority Report are they including
[ ] Is there an explanation for why information is not included
Addington
1. Note the ellipses: There's a key
phrase that's been eliminated.
Here's the quote:
whatever opinion may be entertained
of the manner in which executive
discretion may be used, still
there exists, and can exist,
no power to control that
discretion
[ ] Is the quote a fair
statement?
[ ] WHy is the Marybury case,
which relates to Judicial
Review, asking us to believe
that the case is something
else: A permission for the
executive
It does not follow that
law, would then
conclusion; nor would it
reasoning
Rather, it is absurd to
suggest that their acts
are "only politically
examinable" in cases where
they can have their
qualified immunity revoked;
or privilege trumped.
Thus, it does not follow
that from the "incorrect
assertion of the opinion"
that Congress can or
cannot do something.
- Rather, the issue is what
can or cannot Congress
do to impose its will
on the President.
- There is no basis to
assert that Congress
is prevented from preventing
the President to exercise
discretion on a matter
which the Constitution
strictly prohibits. IN the
case of FISA, the issue
is that the President
is permitted discretion
to engage in warrantless
surveillance if
he follows certain procedures.
- There is no basis to assert
that Congress is restricted
from preventing the President
from exercising discretion
on matters that are otherwise
illegal.
- There is no basis to
assert using Marbury that
the President is restricted
from doing something; or
that Congress is not
appropriately restricting
something; or that the
President's agents may or
may not be restricted from
doing something.
- The President has no
power to violate the
Constitution when the
issue is domestic surveillance;
rather he has the power
to assent to the rule of law
and conduct his activities
in a manner that is
consistent with the law.
- There is no basis to assert
there is an "emergency"
in that the DoJ Staff has
enough time to surf the
internet looking at
"Non emergency things."
- There is no basis to
assert that the
misconduct or violations
were technical; or that
they were permissible; or
that the activity was
merely one of form
and detail, not substance.
ON all counts it is clear
A. The violations were
known;
B. Specific people like
Addington made it clear
that they had no intention
of letting the courts learn
of the illegal action; rather,
as further evidence in
support of the contention
that it was not an
emergency, Addington was
willing to forego
litigation so that the
court would not discover
what was going on --
This means
[1] The lawful consequence
of the illegal behavior
was not the objective,
namely if they didn't get
a trial, they were willing
to forego the desired
prosecution;
[2] The issue wasn't
simply whether or not
the information would be
known - it would be secret;
rather, the issue is despite
the full legal arguments,
Addington feared the court
would reject the activity
as being illegal. Why are they
arguing they're for the
"rule of law" and "our
way of life" when they
refuse to assent to the
final say of the neutral
adjudicator?
There is no basis to
argue that
A. The activities
could not be controlled
by Congress through
statute -- they related
to domestic affairs
B. The personnel involved
were not covered or
affected by the statute
-- they were directly
responsible for following
the law, and took an oath
C. The restrictions were
unconstitutional-- they
expanded the ability of the
Executive to do what
he is otherwise
prohibited from doing:
- Engage in warrantless
surveillance, in violation
of the 4th Amendment
The assertion that the
President can protect
American lives abroad
attaches with it the
requirement that the
full range of protections
include a respect for
their rights. This
obligation to protect
American lives abroad
is an admirable one; but
this does not mean that the
President may assent to
a lesser standard
of protection at home.
Durand Case
The President has to
conduct his affairs in a
manner that respect the
Constitution.
Key phrases in the Durand
quote:
- under the Constitution
- faithful execution of
the laws
. . .
Also, notice where there is
an issue of discretion
on political issues
as is foreign affairs,
the court does not
recognize liability.
However, when we deal with
mandatory requirements
on the Executive -- to
follow the Constitution --
there attaches liability,
especially with the FISA
issues: It's clear in the
statute what is and is
not lawful, and the penalties.
It is merely an assertion,
and not something that is
reliable to believe
that an assertion of
discretion abroad then
creates addition
discretion related to all
laws; or that a discretion
on a foreign policy issues
translates into discretion
on all foreign matters:
there are treaty obligations.
- Who will act to protect
the Constitution when
Congress and the Executive
refuse to take action
to ensure it is protected?
- It is an overstatement
to suggest that the Durand
Case permits
"whatever steps may
be necessary" to protect
American citizens when
they are not in harms way;
the emergency is over;
and the DoJ has enough
time t surf the internet
looking at "non emergency"
things.
[ ] Check The Slaughter-House
Cases. 16 Wall 36, 79 (1872)
- Note: The care applies
to life liberty and property;
meaning:
- Liberty is to be protected,
not infringed
- The protection abroad
is to be respected; there
can be no lesser respect
for the same protections.
Page 475
Neagle Case
135 US 1 (1872)
- Discusses the obligation
to take care that the laws
are faithful execute
- Obligation
- Duty
- Law
- Rights
- foreign
* Think of the Military
Law Review in re Lincoln
- Lincoln violated the
law in order to serve
a higher objective: It was
still illegal
- Borchard's 1915 treatise
on protecting Americans
abroad
Does the unchecked
assertion of power against
American civilians at home,
for whatever reason,
Amount to a making of
war against Civilians?
It is a violation of
executive power to violate
a clear procedure he
is required to follow
to use that power
domestically:
- The law provides it
- The law compels a
procedure
- By failing to follow
the procedure, he's
violated the Constitution
- Even if you ignore
FISA as a requirement, to
do so would to ignore the
Constitutional requirement
for a warrant.
The point is that the
President, by ignoring FISA,
is also exposing himself
to the full Constitution
restrictions which
explicitly bar what he is doing.
It is impossible to ignore
FISA, while at the same
time arguing the conduct
is legal: The action, regardless
the assent or removal of FISA
from the arena, mandates
a comparison with the
requirement to have a warrant.
Putting aside the question
of how that warrant is
or is not obtained, if
there is no warrant, but
the President ignores FISA,
then the activity is not lawful.
Addington has absurdly
stated that exercise
power is "without qualification."
That is non-sense. The major
qualification is the law.
They're using non-sense logic
to compare Article I and II:
Whether there were exceptions
or terms on Congress, and
finding none on the Executive,
then Addington has perversely
argued for an expansive role
of the Executive, despite
the Constitutional prohibitions
against that conduct, in
federalist 78.
It is an overstatement to
suggest that the court
decisions demonstrate anything
which Addington asserts.
A careful reading of the
case law as it applies
to the FISA situation, shows
there are many more issues
which Addington has ignored.
- There is no merit to the
argument that the President
has discretion on whether
to follow or not follow
the law: He took an oat
to remove this discretion,
and he has the duty to do so.
The issue with FISA is that
the Administration would have
us believe that a "policy
issue" [related to forgoing
affairs] attaches with
it an assertion that
on the domestic front,
we have the same
"policy concerns"; when,
in fact, there is no "policy"
or "discretion" on the law:
IT is a requirement.
There is no merit to the
argument that FISA
deprives the Executive of a
"core function".
FISA expands the President's
options; and permits him
to do something he is
otherwise not allowed to do:
Monitor without an open
court warrant review.
- The issue is that the
Congress has the power
to do things in secret;
this means that there are
expansive abilities to
discuss things in private.
The minority report in the
final paragraphs of this
section specifically takes
about secret discussions
and consultations with Congress.
This option was not taken.
They're mixing up the
apple cart: Mixing
functions and powers.
This is deliberate confusion.
functions attach with it
a requirement to perform
certain steps.
It remains to be understood
how the section titled
"The Constitutional Limits on
Congressional restrictions"
relates to powers vs. roles.
It is a dubious assertion
to justify the action
on the basis of a principle
related to protecting lives.
Rather, the action was
to avoid detection of the
violations.
If the primary focus
was to "protect lives" then
there would be no time
or account for DoJ
staffers to engage in "other
things" besides that
Primary protection function.
That Congress may have the
power to do something
is irrelevant: If the
Executive is in a position
to corrupt the information,
or otherwise ensure
appropriations based on
fraud, misinformation, or
lack of interest, then
this is not a bonafide
appropriation, as required
under Article 1 -- where
funds may only be expended
for lawful purposes.
It remains unclear why,
if the Chairman of the
Judiciary Committee views
the activity as illegal,
why he is permitting
the Executive to thwart
efforts to make appropriation
decisions.
End 475
476
It is absurd to suggest
that the Congress is or is
not lawfully using it's power
of appropriations.
Congress has the exclusive
power to appropriation or
not appropriate anything,
especially when the
Executive refuses to assent
To the rule of law.
The Executive may not
“leave it for another day"
or "trust the political
process" when the issue
is a criminal matter; and
there is no reasonable
"policy dispute" on something
that is no longer policy or
politics; but domestic law
and the Constitution.
As to the point that the
Congress has limits on what
it is or is not allowed
to prohibit: That is absurd.
Nowhere in the Constitution
is there a requirement
that Congress fully
fund any "make war"-power.
Rather, the President only
has the power to be
Commander in Chief; and
the Congress has no
obligation to fund anything.
Rather, the Congress simply
has the obligation
to ensure that the
Article IV guarantee
of a Republic remains.
It is not credible to
assert that Congress is
or is not doing anything
to limit the President.
The issue is whether
the President will freely
assent to the rule of law;
or create ruses that
express power delegated
only to the Congress
will somehow be trumped
by something the Executive
fabricates.
That Congress may or
may do something is
interesting; but it does
not follow that Congressional
action in one area will
necessarily revoke a power
which the President was
never granted: The power
to defy the law, ignore
the courts, and otherwise
violate the Constitution.
It is a misstatement of the
INS v. Chadha case on the
issue of the legislative
veto.
Brown v. Califano 627 . 2s 1221 (1980)
[ ] Is it reasonable to conclude
that an education appropriation
is or is not related to FISA?
[ ] Difference:
- Appropriation for action
- Statute: Constitutional?
- How will the Judiciary
construe the statute
under a threat of loss of
funds?
- what if the Executive (by
action/inaction/contempt
for the law) has effectively
ignored the very process
he would assert that NSA
activity should or should
not be fully funded, not
funded, or otherwise could
not be shut off?
It is not clear that the
Congress has no role
in shutting off funds
for activity that is
otherwise not lawful.
The Executive may not
assert a program "must be
funded" on the grounds
that it does or does
not do something, yet
Congress is not given
information on what
that speculative outcome is.
Rather, we do now that the
conduct by the President's
admission, is not lawful.
They're effectively
shifting the burden of
proof on the basis of
shifting the argument and
focus from the Constitution
onto other things, take
your pick:
* Law: Divert attention
- Constitution [Primary]
- Statute [Constitutional]
* Issue: Changed
- Rights [Yes]
- Duties, obligations [Yes]
- Power [Balanced]
- Policy [Illegal; foreign irrelevant]
=== Thwarting an illusory issue
* Arena: Shifted
- Domestic [yes]
- foreign [Irrelevant]
* Process: Ignored
- Intent [Protect/violate rights and safety]
- Outcomes/results [Unlawful]
- Objectives [Expand/narrow options, power]
- Requirements [follow/ignore law]
* Resolution: meaningless
- Criminal [Applies]
- Civil [Outside Congress]
- Remedies [Political]
Swaim Precedent
28 Ct. Cl. 173, 221 (1893)
- Impairment through rules
- Need to consider the
treaty obligations of Geneva
- How is a rule to mandate
lawful, civil conduct an
"impairment"? [Basis to
assert that Geneva was
quaint: That it was
an impairment]
- However, this is at
odds with Chanda -- in that
the Senate has the exclusive
power to review appointments
and treaties; and Addington
cannot abrogate the treaty
obligations which the
Senate affirmed as applicable;
and the Executive took
an oath to uphold.
If the Executive refuses
to uphold the treaty; other
nations may reciprocate
against civilians.
The funding issue and "sole
organ" argument are dubious.
It's not been established
that the Executive is the
"Sole organ" on domestic
issues; nor that the
Constitution does or does
not apply -- it does,
as this is a domestic issue.
Contrary to what Addington
is saying, an establishment
of a department does not
mean that department is
forever funded; or that
the roles and duties
are forever to be performed,
regardless the compliance
with the law.
if the power of the purse
is real, then the Executive
may not take action which
circumvents that power; or
thwart the Congress is
reviewing whether the
appropriations are or are
not lawful; nor may the
Executive encourage others
to assent to appropriations
which violate the law.
This is contrary to the
oath of office 5 USC 3331.
Church Report: Is this ironic
in that the Church Report,
which created FISA, is then
used as the basis to assert
that Congress cannot do
what the Church Report
and Cheney Recognized in the
minority report:
- Appropriations, power of
purpose
- Oversight
- Monitor
[ ] How are the Church
Recommendations factoring
into whether the intent
of the Senate Intelligence
Committee is getting
fulfilled?
[ ] What duties and
obligations did the
Church Committee create,
other than FISA, that have
a direct bearing on the
issues surfacing in the NSA
and other domestic activity?
[ ] What commentary did the
Church Committee make about
domestic intelligence
gathering operations in the
context of, "Is this the
kind of place we want to live?"
or "What does this activity
really leave Americans
in terms of what we're
fighting for in Vietnam?"
It's an overstatement
of what the Church Committee
Said at note 25.
[Church: US Senate Select
Committee to Study
Governmental Operations,
final Report at 39.]
Putting aside the nonsense
in the Senate Judiciary,
where is the House
Government affairs/operations
committee in this NSA stuff?
Let's discuss one way that
DoD and the CIA conduct
covert operations.
Within the statute are
provisions for funding
that include discretion.
Also DoD and CIA can do things
like create front companies
that are not simply there
to gather information,
or do things covertly;
they are also there to
raise funds and make money.
However, the use of that
money, when discovered
to be illegal and contrary
to US policy, is not beyond
Congressional power to
sanction.
The CIA and NSA do not have
the power to violate the
US laws; that they may
not get caught doing so
does not create a rule
that all covert activity
is lawful; or that all
secret activity is beyond
examination.
Rather, when the activity,
whatever it is, does not
follow the standards that
have been laid down, and
there are ample provisions
made to accommodate other
options to achieve the
objectives, then the burden
falls on the executive to
justify why he should remain
in office.
He cannot simply invoke
the doctrine of secrecy
to avoid oversight; rather
he has to make a fair
showing that the secrecy
is not a dubious one for the
purposes of hiding illegal
conduct, that he knew
or should have known did
not comply with the law.
But the issue isn't simply
whether the original
violation did or didn't occur;
rather, the subsequent
issue becomes whether 8nder
Title 50 the President did
or didn’t adequately notify
Congress of that illegal
activity. In this case
he did not.
The issue with DoD and the
NSA is simply one of
trading of foreign policy,
where there is great discretion;
as opposed to domestic
actions, which must be
consistent with the law.
Given Addington has disdain
for Geneva, it is not
surprising why we have
an emphasis on foreign policy:
This is a sham mechanism
to create discretion where
there is none.
Addington's problem is that
he's invoked the "policy
discretion"=argument as it
relates to combat; while
at the same time he's failed
to show that he's serious
about following the laws
related to those foreign
combat activates:
- Treatment of belligerents
- Lawfulness of war
- Information provided to Congress
- Lawfulness of appropriations
- Notifications to Congress on illegal things
- Adherence to treaties
- Respect for case law
- Deference to legal opinions/military law reviews/JAG in re war crimes
- Laws of war programs, 5100.77
- Duty to follow Geneva [Article 83]
As you can see the list of
violations is long; and this
is merely what we know.
Addington's job was
to build off the momentum
abroad, and create
a "legal argument" applying
the above list of abuses,
and "justifying" those
domestically, all without
getting caught.
We can infer that eh scope
of war crimes violations, and
known NSA-domestic violations
essentially amounts the following
conduct:
- Do what was done in the fy06
budget
- where there are no explicit
restrictions, do it -- even
though there has been no
delegation of power to do
that; and the conduct
violates the laws and treaties
- where another branch does
something, claim that as a power
for the executive
- where the court has a role,
shut them out
This is abuse of power.
It is absurd for Addington
to argue that Congress
does not have to provide
money for cover operations.
That's not the point: That
money is or is not used
is not the issue.
The laws permit the DoD
and CIA to spend things
on illegal things overseas;
the only way the activity
will occur is if CIA
has a foreign business
that it is using to find
the operation. But this
business does not the
create an immunized
body that is beyond the
Congressional power to
find is in violation of
statute.
That something has been
done in secret does not
mean that the conduct
is lawful; or beyond
the threat of Congressional
rebuke for having violated
the statute.
Let's consider the notion
that the US Congress gives
the President a "contingency"
fund for cover ops.
Addington argues
that it expedites things
when Congress does not have
to individually appropriate
for cover operations.
[ ] what does this say
for oversight?
[ ] What happens when the
activity violates the very
things which the Church
committee and Constitution
prohibit?
Given Addington is
arguing that the "covert"
funding allows for a
"response" -- what is to be
said when:
[ ] Covert intelligence
tells the President 52 times
that there is information
from the FAA saying there
is a problem?
It doesn't say much when,
despite the covertness,
the result is as if there
had been no covert activity:
- "Surprise"
Can't justify the covertness
when we're not going to take
advantage of the benefits
of the activity.
They're using circular logic
and backward reasoning:
- President has foreign
power
- President needs intelligence
- Congress can't get in way
- Constitution does not
grand Congress power
to set up a covert fund
- There is no requirement
that Congress have the fund
- It is an issue of what
is being exchanged when
Congress makes rules
related to something
it is not given the power
to create.
Non-sense, in that:
- Appropriations have to be
lawful/for lawful things
- The primary activity
wasn't to gather
information, but to
do something that Congress
forbade [Need to look
at the overall outcome
of that prohibited
activity: Not just
a minor step; but a
larger effort that was
wholly at odds with what
was allowable.]
Notice they're shifting
the attention from whether
the Executive is or isn't
doing what he should;
and adjusting the argument
to whether Congress has
the power to make rules
related to something that
the Executive has no power
to do: Engage in illegal,
domestic activity.
It is legal fiction
to argue that there are
or are not limits
to what rules Congress
may make.
Executive cannot use
funds for illegal things --
that is not a constraint
on Congress, but those
who spend the money.
[ ] Does the requirement
that Congress put on the
Executive to work with
the FISA court amount to
a legislative veto?
No. It's a constitutional
requirement that he have
a warrant; FISA creates a
mechanism to support
that requirement in secret
and expand the President’s
options.
If the President wants the
power to secretly do
something, then he
needs to follow the rules;
not find excuses to
ignore what he otherwise
well knows; and at the same
time ask u to ignore
the information that
shows us this is not a
bonafide emergency mandating
secrecy.
Implicit in the FISA court
process is the Constitutional
protections.
When FISA is not followed,
the clear constitutional
protections can be
inferred to have been
unconstitutionally ignored.
There is no credible case
to be made that the
Congress has or has not
mandated the Executive
give up any power by
requiring the Executive
to do what he agreed to do:
- Secretly come before
the FISA court to follow
a procedure to keep the
information out of the
public's eye; while at the
same time respecting the
Constitution.
Addington needs to
explain which powers
Congress is or is not
interfering with.
Rather, the real burden
is on the President:
- Where is this
power to ignore the law
and treaty
- Where is this power
to invoke a foreign
connection to something
that is clearly domestic
- Why should Congress
be framed as having
given up anything, when
the real issue is what
the President has given
up by ignoring FISA
- where is there any
claim that the Executive,
who has been given an option,
suddenly has the right
to claim that option
as an expansive power?
Addington needs to make
a better case that the
clear statutes take
away a specific power
the President has been
expressly delegated.
He cannot do that because
there has been no
express delegation
of power to violate
the law, conduct searches/
surveillance without
warrants, or otherwise
trump the Constitution.
[ See Lincoln and the
Military Law review.]
There's some deliberate
confusion going on:
- Illusions that
Congress is "getting"
something in exchange
for the President
doing what he is doing
[ Perhaps the Congress
is getting something
for the President's
illegal activity]
- Asserting that Congress
is hoping to gain a power,
by taking something the
President does not have,
away
[This is a burden on the
Executive to demonstrate,
not simply assert]
- Creating an implied
right of "power" when
Congress does or does
not do something if
the Executive does or
doesn't do something
[This can be an illegal
conspiracy to violate
the constitution]
- Asserting a fictional
exchange of powers
as a result of an
agreement elsewhere
[Congress wasn't given
the power to assent to
assertion of non-delegated
power. or violation
of rights]
- Asserting the
President is giving
up a power, when the
Executive never had
that power to begin
with
- Raising issues as
to whether Congress
does or does not
have the power to
affect the Executive;
when the real issue
is that the Executive
has no power to stop,
prevent, or otherwise
thwart The Congress
asserting its Constitutional
power]
- Shifting the attention
from the Executive
abuse of power to
whether the Congress
does or does not have
the power to oppose
that abuse; whether
that opposition is
or is not proper
[It can be proper
and constitutional, even
if the Executive is
not happy, or gets
caught doing illegal things];
- Creating an illusory
exchange which
crates an illusory
right to be immune
to a challenge; yet the
real power implicit
in that appropriation
is the power to deny
that appropriation for
any reason, how trivial.
It is curious that Addington
says that Congress may not
demand something (
information on cover ops) because
it would be a " Legislative line item
veto"; yet, this is
exactly what a signing
statement is: the Executive
insisting on mandating
all others assent to
his view of the law,
even ignoring the law,
and suppressing information
he is otherwise required
to provide [Title 50,
notification on
illegal things].
Yet see this: [ June 10, 1987 ]
- House
- Permanent select Committee
on Intelligence
- Subcommittee on Legislation
- 100th Congress 1st Session
- Title:
Hearings on HR 1013 HR 1371
and other proposals
Which Address the issue of
affording prior Notice of
Covert Actions to the Congress
- Intelligence Committee
Legislation:
April 1 and 8 June 10 , 1987
page 176 [Note 29 in
Chapter 29]
Hearings on HR 1013, HR 1371
If there has been an
abuse of power as there
has been; and the Congress
is not able to get a
response to assent to the
law, why is Congress
reluctant to assert its
power to stand up to the
President?]
End 476
Begin 477
Title 50 Covers the
Notification Requirement
TO Congress on Illegal
Activity
Congressional
Article 1 Section 8
Unconstitutionally
expanded to permit
Executive "necessary
and proper"-powers
Addington is expanding
the Article 1 Section 8
"necessary and proper"
function, exclusively
granted to the legislature
as also being applied
to the Executive.
This is not Constitutional.
There is no explicit
delegation of power to
do what is "necessary
and proper" to carry
out the Executive Branch
powers; those must be
something that Congress
permits, especially in
the case of FISA,
where the Executive
Agreed to follow the law
and the procedure.
There is no executive power to
assert a right/power of
doing what is
"necessary and proper",
while the Constitution,
the source of that
illusory power, is trashed.
Anderson V. Dunn
http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=19&invol=204
This case involved the Article 1 Section 8, “necessary and proper” clause as it relates to the power of congress to make rules, and discipline members.
Addington has stretched the general rules as it applies to Congress under Article 1 Section 8, and contradicted the key case language that undermines his assertions on the Rendition and Guantanamo:
The Constitution ordains, that
the judicial power (which is
equivalent to all the judicial
power) shall be vested in one
Supreme Court, and other inferior
Courts, (art. 3. sec. 1 .) Thus,
the right of the Courts to
exercise such a power, is
exclusive, and an assumption of
it by any other department, is an
usurpation. Nor can the authority
be inferred from usage and
precedent.
Bush’s sealing of the information is a judicial act; and it cannot establish any precedent. Further, Addington’s citations of various cases, however perverse, does not create any bonafide precedent upon which anyone can rely.
Also fatal to Hayden-Gonzalez-Addington’s assertion of NSA “legality”, is Dunn, expressly requiring detailed information, not vague, fictional crimes:
By the fourth article of the amendments to the Constitution, it is provided, that 'no warrant shall issue but on probable cause, supported by oath or affirmation.' Thus, are prohibited, all warrants which do not rest on oath, and on probable cause. But it is no less necessary, that the warrant should recite the cause in special and the oath. The Constitution is not satisfied with 'a cause' so vague and indefinite, as 'high contempt and breach of privilege.' [Anderson v. Dunn, 19 U.S. 204]
Addington has invoked the Dunn case as an analogy for the Executive, clearly contradicting Dunn: [“Nor can the authority be inferred from usage and
precedent.”]
. . .
Let’s consider the illegality issue, in the context of NSA contractors. Where there is no lawful warrants, the warrant is a nullity; and all action related to that null warrant are similarly null, as is any claim on the US Treasury for claims for damages, and compensation for that illegal act.
3. If there be either a defect of authority in the House, or illegality in the warrant, it is no justification. That it is none in the former case, has long [19 U.S. 204, 217] since been settled in this Court. Little v. Barreme, 2 Cranch 179. As to the latter alternative of the proposition, the constitution, by prohibiting an act, renders it void, if done; otherwise, the prohibition were nugatory. 4 Bl. Com. 491. Thus, the warrant is a nullity. [Anderson v. Dunn, 19 U.S. 204]
Qwest knew the action was not lawful, and that they would have no legal standing as a defense, nor a basis to assert any claim for compensation. It remains to be understood what actions, if any, Executive Department officials took to retaliate against Qwest for their timely removal and withdrawal from the alleged illegal conspiracy.
. . .
6 Weat 204, 225-25 (1821)
[ ] How is the Article 1
Section 8 "necessary
and proper clause" as it
relates solely to Congress,
being expanded and
unconstitutionally being
asserted to an executive
"core" function, where
there is no "implied" anything?
[ ] How is the analogy
as it relates to one
branch being unreasonable
applies in a different
situation to a different
branch where the
framers directly, explicitly
rejected this outcome?
[ ] Why should anyone
believe this analogy
is relevant, correctly
stated, or otherwise
useful?
[ ] Why believe that was
is being asserted to have
been "upheld" was actually
done?
[ ] What did the
Supreme Court actually say
on the issues that are
relevant?
[ ] What language in the
case actually undermines
Addington's contentions?
[ ] Why should we believe
Addington's version of
what the Court found?
[ ] Why believe his
contention about what
the Supreme Court said
on the issue?
[ ] How have other cases
looked at the matter
as it relates to implied
power? (There is none).
Using Dunn, it is possible
to show the President
wants it both ways:
- "Public security against
the abuse of such discretion
must rest on responsibility,
and stated appeals to
public approbation. . ."
[look at the full quote]
- They may be at liberty
to exercise power with
discretion; but they do not
have discretion on whether
they follow the law.
Where RNC has violated the
law; they're quick to point
out different situations
that appear to be the same;
in fact, the true scope
of the RNC conduct is
much wider the analogy
being invoked.
They do this to make the
offense "less isolated."
In fact, what they're doing
is hiding facts, and asking
people to assent to
"similar situations" that
are completely different.
Then, when that approach
fails, they'll invoke the
"You didn't do anything,
so you can't start now."
That is non-sense: Look
at the Military Law review
article in re Lincoln.
Congress may have assented
to that illegal activity,
but it does not forever
mean that all similar
conduct is legal. IT remains
an unlawful assertion of power,
and the JAG's well know this
is what is going on under
Cheney, Addington, and
Rumsfeld.
What another government
may have required as a
condition for involvement
in the NSA data
transfers is illegal;
foreign laws and secret
agreements do not trump
the applicability of the
US Constitution in re FISA.
It is irrelevant that the
a specific country with
close ties to the
phone company telephone records
may have been promised something
in exchange for support
of the secret activity.
The situation in France
clearly shows that the
government support of an activity,
even when it involves
commercial activity, does
not create a playground of
immunity fro all.
Rather, all governments,
agents, and commercial/
noncommercial entities
which are involved can be held
labile for the violations
of the rights.
It makes no difference
that the governments of
other nations have agreed
to cooperate on condition
of immunity; the US
government cannot grant
immunity for things
which are strictly prohibited
under the Geneva Conventions.
Look at he agreement
between the US and the
European governments on
Rendition -- you'll
want to understand the details
of what the European
Governments would be led
to believe they would
be given in exchange for
secrecy.
IT should be argued that
in exchange for an illegal
assent to Geneva violations,
the European Union nations
received valuable consideration,
other benefits, or information
which the Americans may or
may not have otherwise privy.
- Did they bargain
on something they had
not power to bargain
- Did they create an
illusory "power of bargain"
over treaty obligations,
effectively trumping
their state legislators?
Appeal to speculative
risks, fears as a basis to
violate the law and rights
- Extent to which they
rely on speculative
uncertainties as a basis
to ignore the law
- What may or may not
happen if something
(that is not required)
is not done [Extortion]
It is not credible
that Addington has
correctly shared the
full details of what
Carter did or didn't do
- His thoughts
- Basis for his actions
- What principles he
was invoking
- What the basis was for
his decision
- Whether the conclusions
are credible
- What the real factors are
- What the real constraints
are
Are the factors that
Addington is invoking
as an excuse for failing
to what should have
been done [duties]
credible:
- elapsed time
- action
[ ] Who defines
when the activity
is or is not
adequately characterized?
[ ] How much secrecy
is permitted to prevent
detection of violation
of rights?
[ ] Can the very systems
established to screen
this information in secret
be circumvented to
justify secrecy, and
engage in extreme, random
intrusions to invoke fear?
[ ] what happens when,
despite that reckless
abuse of power,
the civilian population
turns on those who
abuser power, and
refuse to assent
to the abuses?
[ ] what happens if the
civilian population
invokes the principles
of reciprocity
and actively works
with law enforcement
to lawfully target
for Rendition to the
Hague those who
otherwise refuse
to cooperate with
requirements they
conduct their domestic
affairs consistent
with the law?
[ ] What happens
when the civilian
population refuses
to cooperate with
the abuse; and they
realize they do have
options; and there
is hope that the
abuse can be stood up to?
Is the invocation of
discretion appropriate
in this case?
[US v. Nixon, 518 US 683]
[ ] what happens when
the other branches do
not respect the other
branches view of the
Constitution?
[ ] How is a unilateral
decision by the executive
to invade Congress
treated in terms of Nixon?
[ ] What if the branches
"interpretation" of powers
results in a violation
of rights: What is done
to compel that illegal
activity to end, when
the government refuses
to prevent the abuse; and
the government claims
the abuse must continue,
regardless the agreement
not to permit that abuse
to occur?
[ ] When a government
effectively abrogates
a fundamental document,
how much detail has to
be put into the planning
of the novel, solemn
ceremony to replace
what doesn't work with
a strong system?
[ ] What shall be done
when an executive asserts
an "implied" power of
"Necessary and proper",
but that power has not
been delegated expressly?
[ ] This "obvious" rule
is not obvious: "The President obviously
cannot consult with Congress about
whether to Consult."
- Why not?
- Why can't the President
consult with Congress
about whether to consult?
- Why can't there be some
generic functions, procedures,
or other things as they
exist in FISA?
Yet, despite this "impossibility,"
This is exactly what
this Executive would have us
believe is occurring in re:
- 1. Procedures to gather
warrants, discuss future
raids in Congress
_ 2. Conversely, how Specter
is or is not waiting for
the White House comment
on the FISA-NSA-related
appropriations bill: He's waiting
to consult with the White House;
why can't that be codified?
[Sibbach v. Wilson]
[ 312 US 1 (1941) ]
INS v. Chadha
462 US at 935 n. 0
Report and wait:
- Likely he's drafted comments
totally at odds with his
principle, and fatally
defeats his argument
in re FISA.
Addington is in trouble:
QUOTE:
"The report and wait requirements the
Court has upheld have all been
domestic policy matters
over which the President
has no inherent power
to act without statutory authorization."
END UOQTE
[ ] Why can't the Congress
use it's control over
appropriations to deprive
President of discretion
on matters he has no
discretion?
[ ] Why can’t the Congress
assert that there is
no recognized "necessary
and proper"-clause in
Article II, and deny
the funding for all activities
which spring forth
from all signing statements
which rely on this fictional
power?
[ ] If the Executive abuses
fundamental rights, why
does it matter if Congress
is or is not questioned
on power: The issue is
the fundamental abuse by
the Executive.
Addington-Cheney rule:
- Where there is a valid
requirement, they point
out to non-sense examples
that appear to violate
this requirement, thereby
giving them a green light
to continue with violations
Let's consider the ultimate
absurdity, in light of
what we know about the
Cheney and Specter not
being able to share some
words at the buffet line:
Page 478
QUOTE:
"The Constitutional basis for
withholding notification
can only be invoked
credibly, by its own terms,
in very rare circumstances."
ENDQUOTE
- In re FISA -- these
circumstances were not
real; they were fabricated;
and there is non-sense
Unfounded fears
This was invoked in re NSA;
so why isn't the NSA
majority report comment
thrown back?
QUOTE:
A generalized fear that
Congress might leak would
not by itself suffice,
because the same fear
could be invoked equally
for all covert actions
and therefore would not be
credible.
ENDQUOTE
QUOTE:
The members who think they
need new legislation
underestimate the
political leverage
they now have to ensure that a
President will not abuse
his inherent power.
ENDQUOTE
- Small problem: There is
no inherent power, but it
is being abused despite
a threat of loss of money.
QUOTE:
The oversight rules already
in place assure
that Congress eventually find
about out any operation.
ENDQUOTE
And if they do, this
Executive will sill do it,
despite admitting it.
QUOTE:
Once that happens, Congress’s
control over the purse, and its
power to investigate,
give it ample manes to exact
a sever political price
on a President whom it feels
has overstepped proper bounds."
ENDQUOTE
SO, if this is true, why is
Specter apologizing for
doing what Cheney said
in 1987 could be done?
QUOTE:
The Iran-Contra investigations
have made this abundantly
clear to President Reagan.
We cannot believe any future
President will miss this point.
ENDQUOTE
Well, despite this "big
precedent," this clerk
in the Oval office has
missed the obvious.
WHy? Because the man who
wrote the above words
is the Vice President,
behind the backroom deals
to thwart the very
oversight, investigations,
and threats to cut off
money for the NSA that
he otherwise said would
solve h problem.
Since Cheney is in the way,
its’ time to look not only
at new legislation to give
Congress new tools,
but to draft a new
Constitution: Either you
follow the law, or we're going
to explicitly state in the
New one: You have no inherent
or implied power to do
anything; and if you assert
you do at any time, you
have committed a felony
and may be removed from
office by a popular vote
of the people.
finish: Page 478
Conclusion
posted by Constant @ 8:02 PM
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