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Saturday, June 10, 2006

NSA: Cheney’s Inadequate Response to Senate

Cheney's response is a ruse, wholly consistent with his signed 1987 Iran-Contra Minority Report.

The Vice President’s response to Senator Specter, Chairman of the Senate Judiciary Committee is inadequate. The Vice President failed to capture the essential points; and on those few points he did cover, the response and information was wholly inadequate. Cheney’s main problem is that he stuck in a box, having been closely associated with the cherry picking on not just the statutory legal arguments, but the issues of the Constitution.

There is a sham going on. This Executive is shifting the argument from the law, and pretending the issues are classified. Yet, there are open, fatal admissions that the FISA process was ignored. This is a violation of the law. It does not matter what legal arguments were used. Qwest was clearly not satisfied with what they were told.

The stonewalling is obvious. This Executive chooses to delay direct communication between the phone companies and Members of Congress. The Executive wants to interference and avoid an open, non-classified discussion on [1] the actual evidence; and [2] the real legal arguments; and [3] the phony assurances; this Executive is asking us to (absurdly) believe that the conduct was lawful. None of these legal issues have been satisfactorily addressed. Either the Congress and Executive can jointly agree to cooperate; or the Congress can issue subpoenas.

It is not acceptable that the Congress is debating “whether to have this open or closed” when the very problem behind the abuse has been the secrecy. Rather than put this issue of open or closed briefings up to debate, simply subpoena both the telephone companies, and the Executive Department and other officials who worked with the phone companies. You will see, based on Qwest’s open discussions, that their stories are not consistent.

Again, the discussion at the point should move away from whether or not the program is or is not classified; and focus squarely on the legal arguments. It doesn’t matter what type of technical abilities the NSA is using when it uses NAVY personnel to splice underwater fiber optic cables; the only thing that needs to be examined is whether, despite a reasonable knowledge of the FISA requirements, did the Administration assent to legal arguments that were or were not consistent with case law; or has the case law as has been the practice been selectively cherry picked to arrive at the very opposite conclusions as that mandated by the courts: Comply with the law, follow the procedures, and ensure that domestic law is strictly enforced when it comes to monitoring Americans and their private communications.

The burden of proof rests with the government to justify confidence that the procedures were lawful; and we may make adverse inferences that they were not followed, especially in light of Qwest affidavits that they were not satisfied, and that DoJ refused to coordinate with the FISA court on the warrant requirement.

Given the clear stonewalling between the Congress and Executive branch, there needs to be a parallel public effort, outside government, to discuss the following issues:

  • The nature of the conversations between Qwest and the government;

  • The dates, times of conversations; and substantive legal arguments the other phone companies listened to, discussed

  • Methods arrived at to agree that the law would or would not be complied

  • Why there was a difference between what Qwest concluded about the legality of the process, and why the other phone companies to cooperate, despite no credible assurances of a warrant or coordination with FISA court.

    * * *

    Here is what is needed: A letter confirming the promised contact by the Vice President, his staff, and the Judiciary Chairman has started, and that the communications are satisfactory, and responsive to the concerns outlined in the Chairman’s letter.

    Until we see something resembling substantive discussion on the legal issues, and a get well plan that includes a target date, we should have no confidence that the promised discussion is anything of consequences.

    Here is what the public should see as a result of the meeting between Specter and the Vice President’s appointees:

  • A specific plan to appoint a special counsel

  • A specific date when the Senate Judiciary Committee will hold an open committee hearing with the telephone companies on the non-classified issues, and legal issues

  • A date that the ongoing communication between the Chairman and the Vice President’s designee will be made public and part of the open record for public examination

  • The dates when the next briefings will occur, so that the public can work to prepare their supporting packages with their members of Congress; and better discuss in their local communities whether the planned responses are or are not responsive.

    * * *

    Chairman Specter has clearly outlined many issues, which the Vice President has distilled into something quite different. Let’s review specifically what Senator Specter raised, and get some straight answers:

  • 1. FISA Court Constitutionality Ruling: When is the FISA court going to adjudicate on the known information about the Executive Branch?

  • 2. Refusal of Executive to cooperate, respond. Putting aside the unripe discussion legislation on a matter we have been given inadequate information, and the fact that there is ongoing litigation in re FISA violations. what is the plan for the FISA court to publicly, formally rule on a specific cause of action or complaint related to a specific alleged violation of the FISA.

  • 3. Inadequate information. What is the Congressional leadership joint plan in both houses on both sides of the aisle to impose meaningful consequences on the Executive for refusing to cooperate and respond to questions about matters he has otherwise admitted were illegal violations of the law.

  • 4. Ranking Members Trigger IG Reviews. Given the inadequate information, what is the plan of the Minority Staff on each committee to forward to each Inspector General with their associated Executive Department on issues related to alleged illegal activity or other concerns; how is the ranking member on each committee using their power to require the IG to formally respond to a letter being used; why isn’t the Minority Member staff jointly working to focus on the legal arguments in each of the respective Departments [DoJ, NSA, CIA, DoD] to get in writing a memoranda of a legal review of the various arguments by the IG, and identify the dates of memoranda which the SES relied upon to conclude they could continue working without risk of liability.

  • 5. General Counsel limitations. Putting aside the facts, obfuscation, and denials, what effort if any is being made to understand why (if the program and activities are supposedly legal), why SES personnel inside the departments [DoD, NSA, CIA, and DoJ] have consulted with outside attorneys and no longer have confidence in the General Counsel on matters which they should be entitled to immunity?

  • 6. Loss of Immunity. Is there a reason that personnel in the NSA, DoJ, NSA, and DoJ, who are otherwise eligible for qualified immunity would believe that they have been part of something that violates a clearly promulgated statute and clearly established right in the Constitution that would make any Executive promise of immunity void, and they could be subject to having their qualified immunity stripped?

  • 7. Criminal activity. What consequences will be put on the specific executive branch employees for their failure to timely respond to information; if the committee can conduct an open hearing, why not subpoena both the telephone company employees and their Executive Branch employees to discuss the non-classified legal arguments which Qwest rejected?

  • 8. Disrespect to Chairman Specter. Why should we believe that the Vice President is serious about working with “anyone” in Congress, when he openly refuses to deal with the Judiciary chairman leadership?

  • 9. Ineffectiveness Senate Intelligence Committee. Why should we believe, as the Vice President contents, that the Senate Intelligence Committee is the ideal way to funnel information, when that Committee has been a roadblock to investigations into Phase II?

  • 10. Additional revelations of criminal activity. How many more revelations are we going to hear, above and beyond what we already heard sine Gonzalez testified in Feb 2006; are there other surprises; do these related to the warrantless searches and interrogations; how does the rendition program fit into with the use of this information; given there are no warrants used, why should we believe that the results are any different than what we saw his week in London whereby people were detained for a week based on assertions not make under oath, but they found nothing?

  • 11. VP Interference. Given the Vice President’s dubious statements, why should anyone in the RNC walk away with the conclusion other than the Vice President is interfering with oversight.

  • 12. Open Hearing Without Vote. Why should we believe that the Senate is serious about oversight when the option to have an open, non-classified hearing is not used; what is the reason there is reluctance to force with subpoenas the phone company principal officers to appear and testify simply about the legal issues, and no classified information; what is the basis to assert that a legal discussion will require a discussion of classified information; if classified information has to be discussed to review the legal issues, how was Qwest able to comment on the legal decision not to cooperate with the illegal activity, and provide this information in non-redacted from in the litigation against AT&T?

  • 13. Interference with flow of information. Why should we believe that there is any serious plan in place to address the flow of information that ha been below standard; what is the time that these submittals will be made; how will they be part of the National Archive; and what method will be used to ensure that the information is easily available to criminal investigators in a manner that will support certified fraud examiners?

  • 14. Interference with Congressional oversight. Why should anyone believe that the Vice President coordination with the phone companies does not amount to witness tampering; Quest ha already provided in open court their contention that DoJ failed to satisfy the FISA requirement. What reason does the Vice President have to interfere with lawful Congressional inquiry and fact finding into whether the phone companies are or are not given wide latitude to openly report the truthful information related to what DoJ personnel did or did not say; why should we believe that the information flow between the phone companies and Members of Congress is not tainted; what assurance will the Vice President give in writing that he has not engaged in any effort to otherwise intimidate, block, or stifle the phone companies from providing truthful, non-classified information to the public?

  • 15. Hatch is not Judiciary Chairman. What method will the Senate use to ensure that Senators who are not Chairman are not put in a position of brokering deals between the Executive Branch and the Committees? This is a strict violation of protocol and respect that a Senator should show to those who are on the Committee. When will Senator Hatch be censured for not fully coordinating with his own committee Chairman from his own party discussions with the Vice President; why does it appear there is a discipline problem with the RNC; are we to believe that there are some who would rather broker a deal as they did with the Iran-Contra Minority Report, or are there other efforts underway to avoid full and open inquiry as was the supposed standard of the Iran-Contra investigations?

    16. How was it agreed that the legal obligations under FISA would not be followed; what were the dates, times of letters related to these agreements; how were the decisions memorialized; hw were these conclusions inconsistent with the records acts; what was said in general terms about what was or was not required; what will be done to ensure the procedures DoJ-NSA are using do or do not comply with the statute and Constitution.

    17. Senator Specter discusses the information blockage. What is the reason that the Senate Intelligence Committee Members are not providing information back and forth to all Committees in Congress so that the Congress can make fully informed decisions on appropriations and powers of the purse; why should we believe Members of Congress are serious about their 5 USC 3331 obligations?

    * * *

    The RNC cannot agree on whether the information within their own party is or is not sufficient to meet their Constitutional obligations. Some point to many briefings; others point to inadequate information. Clearly, there is a communication problem with the RNC and they have no plan to resolve it. The RNC is in charge. Where is their plan?

    The Vice President is unclear. There is a difference between [1] a legal opinion on the original NYT revelations; and [2] a legal opinion on the legislation to resolve what is still not understood. This Vice President fails to provide clear information on either the original allegations, or the subsequent legislation his own party is discussion. Yet, he would have us believe he is the President of the Senate. This is a leadership problem.

    There is a moving line of evidence. With each passing week, there are more variations. It is clear--Gonzalez was already in trouble for perjury. As we’ve learned more, it’s clear his problem is pervasive. There are more lines of evidence which do not add up. Senate Specter openly acknowledged the DOJ OPR problem, and there refusal of AG Gonzalez to streamlines the review.

    With these many gaps in the information, it remains unclear what basis the Senate uses to confirm appointees like General Hayden. Although they have the unreviewable power to appoint, the House has the option to impeach General Hayden should we learn more in the coming weeks.

    If the Vice President is interested in cooperating on information flows, but says that some information is classified, then he should openly discuss the details of the various legal issues which are not classified. Again, the problem is that he cannot invoke privileged on a matter than he’s openly acknowledged is real: The unlawful domestic, warrantless surveillance.

    The Vice President could provide a list of the thing that he would be willing to discuss. The mere fact that the program is real is a significant development, which by openly discussing the issue makes the basis for invoking absolute privilege moot. It is not a debatable point when the Vice President has openly confirmed din writing the essential facts which the judicial court has been asked to decide: Is this even real? Indeed, it is no longer a legal issue whether the program is or is not real. The real issue is whether the Vice President’s letter from 8 June 2006 will be introduced as evidence to show that the absolute claim of privilege is moot in that it is openly admitted that the activity is occurring, contrary to what AT&T and others might have us believe.

    It would be appropriate if there was an open discussion on the method to ensure the Committee is timely provided information. It would please me if the GAO and Government Operations Committee were brought into the discussion to resolve what will be done to ensure that the information continues to flow in a manner that is constitutional; and conversely, if they are blocked as was done with DoJ OPR, that that information be provided to the public and Members of Congress for their review.

    At this point, there is no guarantee in writing that the Vice President will commit to a full accounting of what has happened. In 1987, he was very clear with what he wanted in the Iran-Contra affair. It is time he does the same, and provides the leadership in the Senate where he, as President of the Senate, can do what he called for in 1987: A plan to gather facts, understand, and provide leadership to the Executive.

    We take the Vice President at his word what he said in 1987: Where Congress needs to do something, leadership is needed. If there is no legislation required to solve this problem, then there needs to be a resolution under FISA. However, this Vice President refuses to ensure that his Chief of Staff and legal advisors fully cooperate with the inquiry, and provide us the information we need to make informed decisions. That is not acceptable.

    It is appropriate to keep the pressure on the Vice President, force him to Commit, and reject any effort to premature offer amnesty. One does not offer Amnesty to those who, as they would argue, have done nothing wrong. Clearly, the Senate is asking the public to assent to a blanket cover-up, and not a true effort to find facts. The public record is clear, the fatal admissions are admissible, and it is premature to offer amnesty to anyone. To offer amnesty is a betrayal of the Constitutional obligations to protect the document from domestic enemies, especially those who choose to defy the law to hide criminal activity.

    There is no merit to any argument that the activity is well grounded. The Vice President’s Chief of Staff is well known to cherry pick. The Iran-Contra Minority Report from 1987 is riddled with absurd legal citations which arrive at legal conclusions completely disconnected from the case law. The RNC has been betrayed. We have been led t believe that the PNAC plans were well grounded. In truth, Addington and Gonzalez have twisted the law to justify criminal conduct. This is a problem which the RNC leadership has yet to fully account to the membership.

    The bottom line is this Vice President and Senator Hatch have orchestrated a delaying tactic. Their aim is simple: To dissuade and thwart a Chairman of the Senate Judiciary Committee in performing his statutory obligations to protect the Constitution. This conduct is reprehensible. Anything the Vice President might have said or written related to this matter needs to be the subject of a separate inquiry. It is inappropriate that the Executive Branch inject itself in this manner in the Senate. A few weeks ago we saw the same intrusions in the House of Representatives. This is a continued chipping away at the independence of Congress.

    Congressional has inherent authority under Article 1 Section 8 to make any rule and provision which binds the Executive and his agents to do something. This Executive has unlawfully usurped Article 1 Section 8 the “necessary and proper”-clause to expand Executive Power to put himself above the law, courts, and Constitution. The President has no implied or inherent authority to do anything that puts himself above the law. Signing statements amount to a defacto line-item-veto, and a usurpation of Judicial power. This is not constitutional.

    In his 7 Jun 2006 letter to the Vice President, Senator Specter referred to a “very contentious decision” on 6 Jun. It would be appropriate if Members of Congress who were present at that discussion provide expanded and revised comments for the Congressional Record as to their concerns, the legal issues, which questions they are not getting answered and the specific non-classified information they would like to have answers to.

    There is no basis t assert that the President has any inherent authority to do anything. It remains up to the Executive to provide the case law and complete legal citations they are using to justify any claim to do what they are dong. A close reading of the 1987 Iran-Contra Minority Report reveals many problems in any assertion of inherent authority. David S. Addington, reported to be one of the principle authors of the report, appears to have enjoyed too much discretion. His case citations, when read in full, fatally undermine the Vice President’s contentions as to the legality of the illegal NSA domestic activity, the applicability of Geneva, rendition, torture, abuse, and other executive misconduct.

    We need some deadlines, and some information. If it is not provided, the States are fully prepared to continue discussions with this Congress refuses to discuss: A New Constitution, and proclamations to force Congress to vote on whether they are serious about investigating these issues. In 1987, the Representative Cheney said he wanted investigations. It is time to ask whether he is serious about being a leader in the Senate, or whether he is going to continue to block serious inquiry that he said was needed in 1987.

    It is a phony argument to believe that we are discussing issues of power. The Executive does not have any power to ignore the law, or defy the Constitution. Rather, these are issues of domestic rights and criminal law. Read closely the Iran-Contra Minority Report, and you will see that the cases they’ve cited in 1987 crate the same smokescreen as they are creating in 2006.

    If Congress is not willing to discuss these issues in public, the public is fully able to publicly make adverse inferences. If you choose to defy the Constitution, we can make a new one, one that will strip you of the power and discretion you now abuse. Where you have no power you have usurped it. Where there is no grant of power, you have crated it. That is not lawful. A new Constitution can expressly, as does the Bill of Rights, state which powers the Executive shall have no power to do, just as is done in the 3rd Amendment:

  • The Executive shall have no power to wage illegal war violating treaties;

  • The executive shall have no power to violate the law of the land or Constitution;

  • The Executive shall have no “necessary and proper”-power; the executive’s power are only expressly delegated and he has no implied power to do anything;

  • The Executive shall not claim he is immune to treaties or international obligations; those who fail to follow the laws of war are committing unlawful acts on behalf of the President; is shall be the responsibility of the Executive to ensure there is a credibly system in place that assent to the Will of Congress for ensuring good order and discipline during times of war; failure to demonstrate that the Executive has a good system in place to maintain discipline is an impeachable offense;

  • The Executive shall have no power to make any statement during th4 signing of a bill; any statement issued which contradicts the express will of Congress, or advocates any interpretation outside the law is an unlawful usurpation of legislative and judicial power if the Executive utters a word or issues a statement related during this solemn occasion he shall have committed an impeachable offense;

  • The Executive shall have no power to provide false information to Congress to mislead the Congress into supporting an authorization for use of force, declaring war, or appropriating funds;

  • The Executive Shall have no power to defy the Congress, not provide full information, or otherwise fully inform Congress on matters related to violations of the law, illegal and unconstitutional conduct, or other activity which has been expressly reserved as a clearly established right;

  • The Executive shall have no power to keep information secret that is related to unlawful, criminal conduct;

    The Executive shall have no power to threaten any member of the public, Media, or Member of Congress with any consequence for reporting truthful information related to unconstitutional conduct, illegal activity, or other conduct which violates clearly established rights and well promulgated Constitutional requirements;

    * * *

    There are several areas warranting attention by the Government Affairs Committees.

  • Appropriations

    The Vice President clearly knows the power of the purse, and this “power” was one of the reasons argued for not requiring any new legislation. Yet, we are at a loss why the Appropriations bills appear to be on a “they are approved until stopped”-approach. A true power of the purse would make each appropriation questionable, but for the good graces and cooperation of the Executive Branch.

    We would like to see a better explanation as to why the current appropriations process is the reverse. A better approach should be one that gives the discretion to each Committee Chairman whether the particular Appropriation Bill even leaves the original (in this case Judiciary) committee, and then goes to the Appropriation Committee for final review.

    It is our view that if the particular Chairman is not satisfied, then that Committee Chairman has no obligation to provide his concurrence to the Appropriations Bill; and the Approbations Committee will effectively never see the bill, thereby returning real oversight to the original Committee, not what we currently have by way of sham oversight, and a rubber stamping approach to legislation, appropriations, information, and other violations of the express will of Congress.

  • Cross flows

    The Vice President has absurdly argued that the various Senate Intelligence Committee members, being members on other committees, would provide the information to other areas. What is to be done when the “benefits” of cross flowing information from committees to another fails to occur; and the information they are provided fails to credibly execute the Congressional power of purse

  • Committee Leadership

    What needs to be done when Members of Congress fail to work through their assigned committees, and effectively ignore a Committee Chairman? Clearly, the Vice President works closely with the Senate Intelligence Committee Chairman; it is unacceptable for anyone who well knows the protocol to then work with “other people” on the Committee to effectively orchestrate plans, delays, and other phony arguments to otherwise thwart information between Congress. If we are to believe that the Vice President can “work with anyone,” why the reluctance to work with, of all people, the Chairman of the very committee charged with deciding whether the DOJ Funding will or will not get out of committee.

  • Two standards on communication

    It is absurd for anyone to argue that the information between the Executive Branch is best “channeled” through one committee; while at the same time failing to provide a single point of contact in the Executive Branch to resolve these issues. It is not acceptable that the Vice president cannot assign a single office. It remains to be explained why the Vice President expects Members of Congress to have only one committee that receives information; but the Congress has no single point of contact. Until the Vice President appoints a specific person who will seriously address the full issues in Senator Specter’s letter, there is no reason any Member of Congress or the public should assent to a single committee overseeing and reviewing these matters.

    * * *

    As a start to a credibly constitutional interaction, the Executive Branch as a minimum has the following responsibilities:

  • Special Counsel

    Initiate a special counsel to review the facts and come to a conclusion as to what did or didn’t happen. The special counsel needs to determine what briefing requirements have been violated; what information has not been provided as required under the statute; and which specific FISA requirements have been violated, and by whom.

  • Use open sources to discuss legal issues

    Cease any serious discussion about providing amnesty in exchange for cooperation. There are plenty of open sources that can show there have been violations of the law. We saw in the Iran-Contra affair that providing Amnesty, even if it does yield information, fails to change behavior. The emphasis needs to be on punishment and accountability, not on the sham transaction for phony promises for phony information.

  • Compliance Plan

    A plan to fully comply with the 1947 reporting requirements under the National Security Act, to include a reconciliation matrix clearly showing the public that the [a] requirements under the law are [b] fully satisfied and [c] addresses the issues and concerns of the entire committee. All Committee Members should be given the right to comment on the final matrix to indicate whether they are satisfied with the responses and information; or whether they have other legal issues and questions they want to discuss with counsel.

    The specific plan needs to address the holes in information which Senator Specter has touched on; the Vice President’s assertions that the activity and programs are fully legal are absurd. Either the Executive Department complies with the statute; or the Executive needs to assent to an investigation of those violations. Choose.

  • DOJ

    There is clearly a problem with the US Attorney General. The Executive branch needs to outline what steps it plans to take to ensure that the DOJ OPR immediately has the resources, support, and access to records needed to fulfill its job. If there is not plan, there is no basis to recertify DoJ.

    * * *

    Clearly, the Vice President’s interactions with Senator Roberts have ensured there has been no oversight; any Cheney assertion that he is interest in a good faith effort are laughable. Our Constitution survives because of the rebutable presumption we have competing factions who are willing to assert their power, and assert their power to ensure that no one faction dominates. It is clear that this Vice president’s actions are not related to a serious attempt to assert power, but to abuse it; he chooses to avoid direct discussions on the issues and remains unresponsive. His letter is merely additional evidence that he has trouble coordinating a credible response to clear violations of the statutes.

    At no time should anyone in the public seriously believe the Vice President. He contend that he wants to work “together”, yet his conduct shows the opposite. He refuses to provide the leadership needed to resolve the communication problem; nor take timely action to ensure the committee leadership is fully informed on the issues. This is not simply an issue of governance or legitimacy, it is the law.

    Let’s assert some of the fatal assertions Cheney has made in the program, which are completely at odds with the President’s statements.

    First, the Vice President has asserted, without providing any basis to believe his contention, that the activity is legal. However, the President has contradicted this contention in that he has asserted, despite FISA requirements to the contrary, that no warrants were obtained. Clearly, the state of mind of the Vice President is quite extraordinary in that he and the President are incapable of coordinating their message. Would it not be lovely if the Vice President were to shift his attention from coordinating with his friends in the Senate, and work more closely to ensure that the Executive Department senior leadership were on the same page? This appears to be a staff communication problem which his current Chief of Staff appears to be challenged and incapable of effectively managing.

    It is not appropriate for the Vice President to lecture any member of Congress on any rule when the Vice President refuses to respond to an in-kind lecture on matters related to criminal and common law.

    Second, the Vice President has failed to deny that the domestic surveillance has been occurring. This position is wholly inconsistent with the DoJ and outside counsel argument that to “even comment” on the activity would confirm or deny its existence. A plain reading of the Cheney June 8, 2006 letter confirms substantially the existence of the activities which the Executive Branch would have the courts believe is “still a question.” It is not a debatable point that the conduct is occurring. The issue is whether the DoJ and Vice President are going to continue to make inconsistent, out of court statements. These are admissible and are exceptions to the hearsay rules.

    * * *

    The issue before us is more than a simple process. The important issue is whether the promise this government makes when it takes an oath to protect the Constitution will be believed. The idea of an oath is to compel to them to do something that they might otherwise not do.

    DoJ would have the public believe that they did not have the resources and time to do the warrants. This is a dubious assertion. If you review the DoJ information technology internet surfing, you will find evidence that the DOJ personnel, at the times that Attorney General said they were too busy, were engaged in internet web surfing of non-official websites, and discussion on phones matters with their spouses related to non-emergency and no-official business. Thus, any contention that the activity is related to an imminent problem or emergency are dubious.

    DoJ personnel, if there were truly working on a “big priority” would not have the time to update websites related to their alma mater, or discuss with their spouses related to fairly benign questions wholly unrelated to their official duties. Where the Attorney General would like us to believe they were short on manner, the DOJ IT information will show you the opposite: They had plenty of staff, they were not taxed, and their workload is wholly at odds with what the Congress is being led to believe.

    * * *

    Any assertion that the activity is or is not legal is simply a red herring. The President has already admitted, and it is not a debatable point, that the FISA court was not used as required; and the warrants were not obtained as required. Qwest confirms the DOJ had not followed the process. This is illegal and part of the public record. There is no need to review classified information to review this illegal activity and evidence.

    The other government red herring is whether FISA was or was not followed. Even if we ignore the FISA requirements as mere technicalities, if DoJ and others in the Executive Branch would have us believe that the FISA is not required, then they are left with the domestic requirement to follow the Constitution. This is their problem: They would have us believe, by ejecting FISA from the discussion that the Constructional warrant requirement moves off the table. This is fiction.

    In reality, what FISA does is increases the options the President has to engage in warrantless activity and do so in secret. By abrogating FISA, the President has limited himself to the strict 4th Amendment requirement. Thus, by refusing to cooperate on FISA in secret, the Executive is in a far worse position: The 4th Amendment requirements are not simply violated, there remains no other legal excuse. This is an impeachable offense.

    * * *

    Putting aside the list of issues with the Executive Branch has ignored, the very narrow issues which Cheney did touch on where wholly cursory and inadequate.

  • Surveillance

    The Vice President failed to justify confidence in his unfounded contention that the program is legal. He remains unresponsive to serious, credible, and substantive allegations that the conduct is not legal and contrary to our Constitution.

  • Legal position

    Cheney refused to credibly discuss the legal arguments, nor has he provided any new I information to believe they have better legal arguments than those supposedly provided. Either way, it has been almost seven [7] months and the public has yet to hear anything resembling a coherent legal argument.

    This late in the game leaves us with one conclusion: There is no legal argument because the activity is not legal; this is well known to the Senior leadership; and the only way they can get others to assent to their orders is to twist the case law and misconstrue it in a manner that they know is reckless, beyond what a legal professional should be doing, and a reasonable basis to inquire into the legal accreditation of the DoJ staff attorneys, White House counsel, and the Vice President’s legal advisors.

    * * *

    As to the dubious claim that the information has been sufficient, we are more inclined to take the Senator Specter at his word: The information has not been satisfactory. Cheney’s assertion to the contrary, when contrasted with the inadequate information would be grounds to impeach him as a credible witness before the Fitzgerald Grand Jury.

    * * *

    The Vice President continues to refer to a periodic “review” every 45 days. He has yet to name the specific DoJ personnel who review this; nor has he provided any confirmation that the Senate has confirmed them to be judicial officers in any Federal Court.

    Federalist 78 clearly imposes a requirement on the courts to ensure that they review the issues. Federalist 10 also states that no man can judge himself. The DoJ 45 day “review” is just that: A self-review by the Executive that, without any independent adjudication, that the activity does or does not satisfy some nebulous requirement.

    Yet, it is clear that Congress, having no information on the activity and oversight, is in no position to assent that the requirements in the NSA review do or do not meet any standard required under the law. In effect, the Executive has usurped both legislative and judicial power in crafting procedures outside the law; and then self-certifying that the conduct does or does not meet the standard. This process has yet to be vetted; and there is no basis to believe that the process is sound in that the results are self-evident: The conduct is contrary to the FISA, and outside what is required under the Constitution – a warrant.

    There has been no credible accounting of the failure to coordinate with the FISA court; nor has the Vice President’s legal team explained their refusal to provide the FISA court with the full information about the illegal surveillance and warrantless interrogations. It is troubling that despite many visits to the FISA court, the Vice President’s legal team has been unwilling to put into practice the standards of cooperation which this Vice President would have us believe, this late in the game, he is committed to. The interest in cooperation cannot be taken seriously, and raise questions about obstruction of justice and fraud for failing to follow clearly established administrative procedures. These are matters of criminal law, not issues of power or subjective views on the Constitution.

    * * *

    The current dilemma is self-made. The solution isn’t to delay one needed action for the off chance that another delaying tactic may or may not work. Rather, there can be parallel efforts by many parties both within and outside government to assert the rule of law, gather evidence, and make adverse inferences.

    Where there is no cooperation in getting information, the Senate Judiciary Chairman needs to issue subpoenas and have an open hearing. This will simply ensure the question of whether there will or will not be a hearing a non-debatable point; and ensure the non-classified legal issues remain part of the immediate public record, well before the November 2006 elections.

    * * *

    We need to see a plan that ensures the elected officials have the ability to freely, openly discuss their concerns so they can perform their constitutional role of legislation and debate. If there is no open debate, then there can be no confidence we have a fully functioning republic.

    The members of Congress need to confirm in writing that they are capable of consulting with legal counsel; clear answers from DoJ why they went around the FISA process and openly discussed this approach with Qwest; and an open discussion by Members of Congress whether the information the Executive Branch is providing is or is not meeting the requirements of the National Security Act. The briefings are either in compliance or they are not. It is the job of the Executive Branch to full inform; not for the Members of Congress to remain unclear as to whether they are or are not being provided the information the need to meet their 5 USC 3331 obligations.

    * * *

    It is a dubious claim to assert that the cross over of personnel from the Senate Intelligence Committee to other committees has resulted in adequate information flows. The Members of Congress have expressed more than doubts and grave reservations with the Vice President’s assertions.

    The results are telling. Despite this “cross over” of personnel through various committees, the Congress and Executive present us with inter alia:

  • Ignoring clearly promulgated FISA court procedures and warrant provisions, invalidating Executive Branch employee and agent claims of qualified immunity;

  • Insufficient information on the activity, as required under the National Security act;

  • No Presidential reporting of NSA illegal activity, as required under Title 50;

  • No credible showing by DoJ, NSA, CIA, or DoD that their IG’s have appropriately provided to Members of Congress “urgent” messages related to illegal activity, raising issues of IG malfeasance;

  • Dubious claims of privilege and classification related to illegal activity, violating ORCON;

  • Dubious legal arguments which have not been independently reviewed by a competent judiciary, a matter of fraud;

  • Refusal of the US Attorney General to support the DoJ OPR, an issue of obstruction of justice; and

  • Continued appropriations and expenditures on illegal things, violating the Constitution.

    It is a dubious claim to assert that the Vice President hopes to resolve issues. His objectives are the opposite. He wants to delay, obstruct, thwart, and otherwise dissuade lawful inquiry into matters of criminal law and the Constitution.

    The Vice President in 1987 called for open investigations into the Iran-Contra affair. In 2006, his position on the law and investigations has changed. This is a matter for the Vice President to discuss with the Grand Jury when he is questioned about his state of mind involving conversations with Libby over Ambassador Wilson, Iraq WMD, and the legal arguments related to classification of ORCON-protected HUMINT information.

    The public, where Members of Congress refuse to do so, need to be willing to step in and provide the needed leadership. This Congress, despite its clear procedures and Constitutional role, refuses to ensure that they are fully informed; nor are they willing to assert their power to shut off appropriations. This is not an idle threat, and something the Vice President completely understands remains a viable option.

    * * *

    The issue before us is not whether the form of the information may or may not satisfy the statutory requirements; but whether the net result does or does not comply with the law. Again, putting aside the issue of FISA, our Constitution as affirmed in Dunn mandates were have warrants; to have anything else sends a clear signal that we do not have a credible constitutional system, but one that is a sham. Putting aside the technicalities of FISA or whether FISA does or does not apply, if there is no warrant then there is no Constitutional compliance. If the Vice President is not willing to assent to FISA, then the next step is to cast FISA to the side, and force the nation to directly confront the FISA-less domestic wiretapping: It is impossible to reconcile the activity with the clearly promulgated requirements in the Constitution.

    It is not credible, and a dubious claim for the Vice President to assert, without reviewing the specific questions related to the narrow legal issues, why the legal discussion will require a discussion of classified information. Further, there is no basis to believe that a discussion on legal issues, the statutes, and the Constitution requires a discussion of classified information. Despite this dubious claim, the courts in Michigan have adjudicated the litigation against AT&T can proceed and that evidence can be appropriately redacted and still have an open trial.

    If the Members of Congress are concerned with unconstitutional conduct by the Executive Branch and others, then they need to explain why they do not have sufficient votes to override a veto. Either the Congress is or is not concerned with the pervasive abuse of power and violation of rights. If you are truly concerned, then use your power of the purse; if you are not using your power of the purse, then do not ask the public to believe you are serious about your 5 USC 3331 obligations.

    If the issues before us are unresponsiveness, violations of law, lack of information, and a failure of the Executive to do what should lawfully and constitutionally be done, then it is the role of the Member of Congress to so state: This President is not fit to remain in office, abuses power, and fails to respect the co-equal branches of government. You have options. The public has plenty of time to decide whether you are serious.

    If you refuse to do what is timely required to protect this Constitution, we can do more than simply vote you out of office. We can, and shall continue, to increase audit scope under Generally Accepted Government Accounting Standards, and SAS99 to more closely watch for indicators of fraud, and other alleged criminal activity by Members of Congress. All people worldwide still have access to the FBI, and may or may not choose to cooperate with the DoJ informant program to provide evidence to the US Attorneys of malfeasance by Members of Congress. Where you refuse to engage in oversight, the Senior Executive Auditors and their staff are fully prepared to do so and make you the primary targets of lawful inquiry into alleged malfeasance and 5 USC 3331 violations.

    If you are not being given the information, support, or deference you as a Member of Congress are entitled because of you inherent Article 1 Section 8 authority to do what is necessary to protect this Constitution, then it is your job to make time to speak to the American public from the floor of your respective house and keep us fully informed of your concerns. Until then, we can make adverse inferences that you are concerned but unwilling to mobilize the majority of the public who have already sided with you. That is more than stupidity, but shows you are not fit to remain in office.

    * * *


    The Vice President’s response is wholly inadequate. It is premature to discuss legislation until we get straight information on the simple legal issues. The President is not the ultimate decider; Congress has the power to override vetoes and impeach judicial and executive officials.

    If Members of Congress are again unconstitutionally threatened, they may choose to lawfully reciprocate and create a long list of Executive Ministerial duties which attach with them felony conduct, and the basis to impeach the Executive. It is a matter of serious concern when any Executive Branch official shows disdain for their oath, while at the same time asking the public to believe they are a serious public official.

    Until we get that information we should encourage Members of Congress to make reasonable, adverse inferences based on the fatal admissions to violations of the statute.

    We need deadlines, and get well dates. As a start, here’s what the Executive Branch needs to provide to the public and Members of Congress, in writing and signed:

    [ ] Clearly promulgated dates that the public will be provide information related to the following issues:

    [ ] Provide a written, public plan to fully inform the Members of Congress in the Judiciary Committee and Senate Intelligence Committee to completely satisfy the National Security Act reporting requirements;

    [ ] Meaningful sanctions on the Executive Branch personnel when they go around the Committee Chairman, and talk directly with the targets of the ongoing litigation;

    [ ]Provide a public plan to provide full telephone data, legal points, authorities, and redacted memoranda related to the government-phone company conversations;

    [ ] Include a discussion of the JROC process as it pertains to the NSA program; and why the NSA activity is using methods which the JROC rejected as being illegal;

    [ ] Conduct and show a line by line accounting by the Executive Department on the DoJ memoranda showing there is a trace between the case law in the public documents; what the FISA act required; and the actual actions and coordination inter alia:

  • Show the actions are or are not consistent with the FISA requirements;

  • Demonstrate the case law cited does or does not satisfy the legal requirements;

  • Include an explanation for any text removed from the quotations in the cited case law;

  • Discuss the reasons why the cited case law does or does not fully support the legal contentions which Qwest rejected;

  • Explain with case law citations whether the legal arguments are or are not credible in light of the asserted powers;

  • Demonstrate that the cited case law does or does not support the contentions about the asserted positions on the Executive Article II powers; and

  • Provide a reasonable basis to believe that the Article 1 Section 8 “necessary and proper clause” does or does not apply to the Executive and permit “necessary and proper” action that may be illegal, contrary to the law, or a violation of the Constitution.

    [ ] Provide a complete discussion of the why the legal arguments (which Qwest rejected as not being sufficient to compel compliance) require a discussion of classified information; and an affirmative statement under penalty of perjury that it is impossible to discuss either [a] the legal arguments or [b] illegal conduct without discussing [c] classified information.