NSA: Government Argues Against Itself
Fatal Government Assertions
25 of 29, lines 14-15 are fateful to the government.
There are two points which the government has admitted:
Each of these points is contrary to the governments arguments. Because they have asserted an argument that is contrary to their interests, this is a fatal assertion.
The government has just shown they have stupid attorneys.
Just because a court in one case found FISA surveillance is lawful, doesn't mean that any conduct -- however disconnected from FISA -- is or is not lawful.
Moreover, the US government cannot explain, if there is a bonafide program, why the FISA court cannot review the matters as it has done in other cases. Rather, the government argues the opposite: That despite many cases where no state privilege was invoked, the court cannot do what it has done in the past and secretly review the information.
The government is arguing against itself.
The government has the burden to prove that the state secrets claim has merit, and that there is no unclassified way to review the matters.
The government has failed to meet this burden.
What's most laughable is the 25 of 28, line 22-23 comment about abrogation. What a mockery. This government has effectively abrogated the US Constitution by engaging in illegal surveillance outside FISA.
There is no merit to the Government's position 25 of 29, line 21 that the state secrets claim has been properly invoked. This is incorrect. To claim this privilege, it cannot be simply asserted, but must be demonstrated. The government fails to meet this burden.
It is a misstatement as to the legal positions 26 of 29, line 2-5 of the plaintiffs over whether FISA is or is not abrogated. The issue before is more subtle: Whether FISA can be ignored by invoking secrecy.
The government further undermines itself 26 of 29, lines 11-13 when it invokes the principle of specificity over generality. This is a fatal invocation of a contrary rule which wholly destroys the government's contention that the AUMF (general provision) trumps the FISA (specific provision). The government is not only arguing against itself, but inconsistently applying dubious rules to dubious assertions, which the government clearly ignores.
26 of 29, lines 16-19 clearly state that nothing shall be done to require disclosure of secrets.
The problem the government has is that nothing is needed to show the conduct is illegal. One cannot assert a privilege over a matter that does not have to be reviewed by the court. By disclosing the essential elements of the conduct which clearly violate the law, there is no legal question to be adjudicated, and the government's argument is moot.
It is equally absurd for the government to contend 26 of 29, lines 20-22 clearly assert a "plain, specific" language test, which the Government has admitted it ignored.
Again, the issue at this point isn't whether the information does or does not have to be disclosed. The issue is that the government's arguments against this case going to trial hinge on legal arguments they have openly admitted they've ignored: The specific FISA requirements which mandate court review, which the President, DoJ, and NSA have collectively agreed they have bypassed with their alternate 45-day review period.
Again, nothing in the FISA permits this 45-day review; and there is no provision within the specific FISA requirements which make allowances. Had the government been truly engaged in a "high, and worthy matter," there would be no requirement for any review. However, the government in knowing it was engaging in illegal conduct, developed a secondary "review" system which acknowledges the requirement to oversee the activity.
FISA did not make provisions for this secondary system; and the fact that the government created this system is sufficient basis to show that the government knew oversight is required. We make no judgment as to whether that oversight system was cursory or adequate; the only point is that it is outside what FISA permits.
Not lost in the discussion is the government's claim that they have a requirement to protect American lives. This is obvious, and required under the Constitution. In that Constitution is also a warrant requirement. If FISA is ignored, as is the government’s contention they have done, then the Constitution has to be followed. Again, the government has already admitted it ignored both the Constitution and FISA. There is no issue for the court to adjudicate.
The government has fatally admitted it has violated the law, and not followed the specific FISA requirements -- a standard the government clearly is well aware of when it invokes this standard against the plaintiffs.
What is most absurd about the government's attorneys contention, is that they claim that the NSA cannot be required to disclose any information. Wonderful, the government cannot explain, despite government counsel's presence, why the President, Addington, and Gonzalez -- all well positioned to understand the law -- ignored the Congressional protections that would have protected the information.
The government at 27-29, lines 9-14 shows it is capable of reading Title 50.
Again, the problem is that under Title 50, once the President admitted that he was not following FISA, he triggered a notification requirement to Congress, which he failed to do. This is a subsequent violation. No classified information needs to be reviewed to find subsequent violations of the law. Indeed, Congress cannot claim ignorance of a program, while at the same time claiming there is nothing wrong. Clearly, Congress has failed to review the program; and has no report from the President, in contravention to Title 50 requirements. It is clear the President, despite openly admitting violations of FISA and not complying with Title 50, wants to keep Congress in the dark, while having the court believe that he's complied with Title 50. This is absurd.
The government 27-29, lines 3-8 fails to provide any case law justifying why the plaintiff does or does not have a burden of proof.
Rather, it is the government that has to make the showing. It is not acceptable to shift the burden to the plaintiff.
Again, the government has merely reduced to writing claims that are appropriately lodged against the government.
Summation
For the above reasons, the government has effectively argued against itself, and ably demonstrated that it knows full well that the FISA cannot be trumped by the AUMF; and that it has failed to meet its burden.
Also, the government has incorrectly asserted -- without citing any case law -- that plaintiffs do or do not have a burden to meet. This is not consistent with precedent, which the government invokes selectively and sparingly.
The government has not met its burden to justify why the information should be protected; and even if it was protected, the trial could still proceed and prove the government has violated the law.
Where the government fails to self-regulate, the public is permitted t take action to protect the Constitution. Justice Scalia invoked the concept of "private action"; it would be a shame to ignore Justice Scalia and leave this responsibility to reckless DoJ attorneys, who are silent when their peers assent to war crimes, and other violations of the clearly promulgated Constitution.
Government motion to dismiss,
DENIED, assholes.
Details
The government fails to prove its case. Contrary to the government's contention 3 of 29, lines 5-23, the government's arguments fail.
We can only wonder whether the attorneys working in DoJ are monkeys, or simply stupid who have no regard for the Constitution.
It is absurd for DoJ Counsel to argue that "all" the information related to this matter is secret.
There is open source information available on the internet that proves AG Gonzalez is lying, has committed perjury, and has engaged in a pattern of misleading conduct before the court and US Congress.
This is not a matter of secrecy. This is a matter of criminal law.
Things that are not secret
Qwest's affidavit that DoJ failed to comply with FISA isn't secret: Ref
DoJ Attorney conduct during the period of "we're too busy to follow FISA, or fill out FISA warrants" is not secret: Ref
There is no evidence of DoJ OPR affidavits filed as required under the professional standards of conduct. This raises substantial questions about the US legal system and notion of "self-regulatory system" which Justice Scalia said is working just [paraphrasing] "fine".
DoJ OPR's letter isn't secret: Ref
Again, there is no evidence of DoJ OPR affidavits filed as required under the professional standards of conduct.
DoJ Attorneys have asserted in a conclusory way plaintiff contentions, without providing any textual references. This does not inspire confidence in their argument, or their mental abilities.
3 of 29, lines 23-25, the government fails to show that the plaintiff has anything to prove or deny. Rather, it's the government's burden.
Notwithstanding Justice' Scalia's absurd contention that private action can [paraphrasing] handle things just right, the government has provided no case law showing the plaintiff must do the work of the government. Rather, lazy government attorneys who are stupid an allegedly associated with war crimes could get another reminder from NAVY NCIS and could become lawful targets of a war crimes investigation. It could happen.
DoJ stupid attorneys rely on absurd legal fiction from the Iran-Contra Minority Report, which has been discredited.
4 of 29, lines 1-9 are absurd government remarks. These comments apply to the government. What the government is hoping to do is put the Plaintiffs on trial, yet have failed to file any motion or cause of action because the stupid DoJ Attorneys know that such a claim could have them found in violation of rule 11f.
Claims by the monkeys in DoJ General Counsel's office that the issues cannot be discussed 4 of 29, lines 608 are made moot by the fatal Presidential admissions to the contrary:
It is a separate matter whether the illegal activity, which violated FISA, was or was not related to a national security interest; thus, any claim that it is protected is moot. Rather, by asserting privilege, the government is fatefully linking the conduct and programs to official actions, which maximizes the exposure the President has to litigation, as recognized in Youngstown, and Justice Jackson's Third Test, also well cited in the Iran-Contra Minority Report.
Come to think of it, it's absurd for anyone inside the White House to say that Fitzgerald is "wrapping up" his work. The Vice President hasn't been called to testify about his state of mind.
Not that we need to know: He's clearly demented. Who wouldn't be if you had Addington as a legal advisor. [How's that metro ride, David?]
But why stop there, the government's contention at 4 of 29, line 5 that it is discussing "facts" misses the point.
At this juncture, we're not talking about facts, we're simply asking whether the case can or cannot go to trial based on what the plaintiff has alleged.
Again, the point isn't that there is or isn't a fact to be explored -- there isn't, as we're not exploring facts, only arguments -- but whether the government is open to admitting its responsibility for what is known: The illegal conduct, which circumvents FISA, and wholly undermines the American Constitutional system.
But hay, if you have a memo that Addington has given to Senator Roberts saying, "Go slow with that Phase II, we need to win the election," that would be really fun to read.
Government attorneys 4 of 29, line 8 contend they do not have to respond.
OK, then go read Federalist 78, which We the People have the inherent right to draft a New Constitution. If you don't want to respond to the court or these violations, we can make a New Constitution which explicitly denies "state privilege" on these matters, and effectively ejects the Court from the matter: It will be self-evident, if you can read, that you do not have the power to avoid assenting the law.
There is no reason to believe 4 of 29, lines 10-21 the government’s contention as to what the plaintiffs are or are not arguing. As is the case, the government misrepresents the law. Why should we believe the government's convoluted assertion of what plaintiffs hope to accomplish?
You defy reason.
It is irrelevant that FISA has or has not been trumped by an illusory Congressional rule related to privilege.
The government has not shown, contrary to its contention 4 of 29, lines 13-15, that FISA requirements -- which the government admits were not followed -- restrict the President from doing anything. Rather, FISA permits illegal conduct which violates the Constitution: Warrantless searches.
The law of the land is as it is; Congress does not have to do something to affirm the Constitutional requirements, which remain in full force, once FISA is ignored.
Just as we saw in the Iran-Contra report, the government absurdly claims that there is a "well established" doctrine that the privilege is "firmly established." [ 4 of 29, 15-19 ] This is false.
Privilege can be trumped when the trial can proceed on non-classified information, as is the case here.
Note closely the absurd arguments, reminiscent of the Iran-Contra report, whereby domestic law is ignored on the basis of dubious assertions about foreign powers.
Each of the claims the government relies on 4 of 29, lines 10-21 is directly linked to absurdly cited case law. The government's problem, as Addington well recognized in the Iran-Contra Minority Report, was that the Youngstown 3rd Test explicitly puts the President's power at its lowest point, contrary to the government's contention, putting the FISA well over the President as a requirement to meet, not ignore, as the Qwest affidavit shows.
Contrary to the government's contentions:
The government [5 of 29] has failed to prove its point. Even if true, the government's burden -- not eh plaintiffs -- is to justify why the privileged, even if it were invoked is a bar to trial.
Rather than discuss why trial cannot proceed, even if privilege were invoked, the government has taken a broad brush to the issue and simply asserted that all things cannot be discussed.
Yet, how can the government claim that the open information, which is not secret, and consistent with plaintiff's contention, cannot be reviewed:
The government fails [5 of 29, line 10] to demonstrate plaintiffs have misstated the law. The assertion of state secrets is not absolute, and may be trumped when the trial could proceed without using that information.
Government counsel has failed to demonstrate that they have exhausted all options to resolve this dispute efficiently, or through non-classified means.
Counsel [5 of 29, 6-10] has failed to show why their view of the Plaintiff argument should be taken seriously. Rather, the plaintiff position is that because the essential, fatal admissions are well known, there is no basis to bar a trial, even if privilege were invoked. This is a reasonable assertion, which the government has not adequately addressed anywhere, even before Congress.
At no time has counsel made a fair showing that -- even if plaintiffs contentions were incorrect -- that the trial cannot proceed. The point of the discussion at this juncture is to focus the spotlight of justice on the government, not prematurely argue the merits of information which plaintiffs, unlike the government, have a well grounded, factual, and legal basis to assert: The right to have a complaint heard at trial. The government has not shown that the plaintiffs would be given any forum to resolve this constitutional issue if the trial were ejected from the courtroom.
If the legal questions which the government relies on as "proof" that nothing can be done, are not addressed in this court, where does the government hope to show to the world that the government’s conduct deserves world admiration and support? It's already ignored the UN, and taken the dispute to the battlefield. Is this the preferred forum for the government to resolve disputes that are otherwise already known? The issue isn't whether the government has or hasn't violated the law; the issue is, despite violating the law, when does the government plan to wage direct combat operations against American civilians for their knowledge that the American government officials and attorneys have engaged in war crimes, and refuse to assent to clear international obligations under Geneva.
If the government will not assent to any court to resolve this dispute, then the government has no basis to whine or cry when more US troops are tortured in an illegal occupation in Iraq. The US government and its counsel puts itself above the law. In that spirit, if this dispute cannot be handled by the court, then the government is saying that all future disputes -- with any American citizen -- can only be resolved on the battlefield. The US Attorneys look unfavorably upon their peers who advocate violence, yet where are the complaints to the DoJ OPR over these absurd arguments and reckless disregard for the law? There are none because the DoJ OPR knows there is a problem, but has been silenced about the failure of the DoJ Attorneys to timely file, and remove themselves, from those in the DoJ-CIA-NSA-DoD who are working in concert with Addington to use phony arguments to justify ignoring the Constitution.
You do not have an oath to a "higher calling". Your only calling, the highest calling, is to the Constitution. You may not ignore or violate the law to "save something else"; your only duty is to the Constitution. This late in the game, in 2006, is far too removed from the events of 2001 to justify any absurd notion of "imminent emergency." Rather, by all accounts, the collective DoJ Attorney conduct is related to one thing: To cover-up the pubic knowledge of DoJ-NSA-DoD illegal activity.
[5 of 29, lines 22-24] Notice counsel is stating what "should happen" without explaining why this assertion is linked with the law.
Note 26, which counsel cites [5 of 29, lines 21-24] relates to the Trotten which in no way states the quoted comments counsel has cited.
This quote does not exist:
"notwithstanding the plaintiffs’' ability to produce nonprivileged evidence, if the very subject matter of the action' is a state secret, then the court should dismiss the plaintiffs action based solely on the invocation of the state secrets privilege."5 of 29, 21-24
Even if this quote is real, the key finding from Totton, as reported at note 26 -- which counsel failed to include -- was that the case was dismissed because there was no way for the cause to be proven.
The action was dismissed on the pleadings without ever reaching the question of evidence, since it was so obvious that the action should never prevail over the privilege.[ Reynolds, Note 26 ]
Putting aside the issue that the 1875 Totten case was 103 years before FISA and a different era, today, the situation with the NSA and FISA is the reverse:
Putting aside the unmet burden of the government to show that the trial could not proceed even if all classified information were suppressed, on this point alone, it is clear the government has no credible defense or bar to trial.
Contrary to the government's contention 6 of 29, 1-2 the conditions are not present, never were present, and are fatal to the government's defense.
Now, let's take a step back and consider what the government is doing 6 of 29, 3-10:
In other words, they've engaged in mental diarrhea, then had you focus on the splatter mark, rather than whether their argument actually proves their point: That the government does or does not have a credible bar to trial, even if the classified information were suppressed.
At this diversion from reality, and the government's request we enter the land of Alice and Wonderland, we need not consider the remainder of the remainder of the Government's argument: It is equally devoid of any legal foundation.
But, for grins, let's keep digging at this, showing the desperation the DoJ Attorneys have, in that they do not want:
[ Page 6 of 29, line 3] asks us to believe that Plaintiffs have "confirmed" something, but we've already established that the government assertion is absurd, and disconnected from reality and the instant case.
[ 6 of 29 Note 3], Government attorneys are committing fraud upon the court when they say that they "never reviewed" the declarations. This is false, misleading, incorrect, and they know this is false. The DoJ and private counsel have reviewed online information related to the NARUS STA 6400, and this information has been provided to counsel and DoJ. NARUS, Pillsbury Winthrop, Baker Botts, and other DoJ-affiliated counsel have reviewed the online information. Even if there was no evidence of them reviewing the documents, it would be absurd to believe that DoJ would ignore reviewing this document and cannot on the surface be taken seriously.
[6 of 29, line 10-12] These comments are irrelevant, in that AT&T, Baker Botts, and other DoJ-connected counsel have shown an interest in the AT&T litigation, and have made public statements confirming that the NARUS STA 6400 system is connected to NARUS and AT&T. It is part of the public record that Baker Botts and AT&T are closely associated; and the only legal arguments Baker Botts has provided are absurd.
[6 of 29, line 15] The government "formulation" of Reynolds and Kaza is disconnected from note 26 and Totten, and is a dubious argument.
[7 of 29, 1-3] The government incorrectly says that it cannot respond. This is false. The government has already responded, in some cases openly admitting within the motion:
7 of 29 4-5 is dubious, and is not supported by the case law, Totten, Note 26, or the actual case law.
Halkin v. Helms, contrary to the government's content, the only issue the court heard was
should the NSA be ordered to disclose whether international communications of the plaintiffs have been acquired by the NSA and disseminated to other federal agencies?
In this situation, the case is completely different:
8 of 29 lines 4-7 relies on non-sense, is meaningless, and fails to address the government burden to show why the case cannot go to trial, even if the privilege were invoked.
8 of 29, Lines 14-19 It is meaningless for the government to assert that anything has already been "demonstrated", therefore another point has been proven. Clearly, the government hasn't made any credible argument, other than do what Addington does in the Iran-Contra report: Create legal fiction.
There is a link between NSA and AT&T, as evidenced by the affidavits, and the public interest AT&T counsel has shown in the matters, combined with their non-sense legal arguments to thwart what is otherwise lawful, open public discussion of their participation in things Qwest refused.
Moreover, to assert that something is just an affidavit and should be disregarded, would ask that the public disregard this government motion. Even if we accept the assertion that the information is "true, as we believe," belief in a legal argument doe snot create a credible legal defense, especially when Note 26 in Reynolds is wholly at odds with what DoJ's legal problem is: Alleged DoJ Attorney complicity in war crimes and illegal conduct.
DoJ Attorneys have a spelling error in 9 of 29, line 1: it should be "alone" not "along." Can't you read? This is an official filing with the court. Lazy! Your legal secretaries in DoJ missed this one again. Were the DoJ personnel surfing the internet making updates to personal webpages again?
NAVY NCIS and potential war crimes investigation into DoJ. How are those calls to your NY private counsel?
9 of 29, 1-10, the government plays a shell game. It argues over whether or not someone does or does not have standing; then changes the subject to whether the conduct did or did not occur.
The burden today is on the government to prove the case cannot proceed, even if all privileged information was withheld.
The issue today is whether the case shall proceed, not whether the case has been proven. Later, the only burden on the plaintiff is to show that there has been a violation of the law; whether the courts do or do not agree that a specific party has or has not been harmed is not relevant to the issue at this stage of the litigation: Whether there is or is not information that would bar the case from going to trial to gather the very information in discovery the information needed to prove the case.
There remains a real risk, that until the DoJ OPR gets your signed affidavits related to the DoJ Attorney knowledge of the illegal conduct, that the DoJ OPR may find you in volition of your obligation to report your peer misconduct. This could result in your disbarment, especially if it is found you remained silent over matters that you had a duty to speak.
It's one thing to assert that the civil courts can effectively oversee, quite another to have that last option denied on the basis of dubious government claims. So much for self-regulation, and Scalia's reliance on the courts to remedy defects in the DoJ's compliance with FISA and procedures.
We the People can still lawfully target you for disbarment; change this Constitution into something that will force you to assent to the rule of law; and deny you from doing what you are doing: Ignoring your oath to the US Constitution.
It is incorrect to assert that -- on a matter of admitted violations of the law -- that the focus would change to the specific technical details of the activity.
We already know what we know: That the conduct violates the law; and the only defense DoJ Attorneys can offer is non-sense. Where there is no defense, and the crime has been admitted, that is a defacto crime against the United States.
It is irrelevant that the DoJ Attorneys have crated legal non-sense to dissuade the Congress to avoid investigating this matter. Rather, We the People may continue to lawfully investigate you in public for purposes of disbarment.
10 of 29, lines 9-28 The government fails to capture the law and plaintiffs argument.
Key to the understanding of the litigation is the burden on the government to show that the case cannot proceed to trial unless information can or cannot be proven. That is premature. At this phase, the goal is to see whether, despite privilege, the trial can or cannot proceed. The government is arguing the wrong point, another sign of the desperation inside DoJ.
It is premature to focus on whether there is a link between [a] trial and [b] state secrets; the issue is whether there is a link between [1] open evidence; and [2] a fair trial; and [3] whether the record will or will not support a fair trial, even despite an invocation of privilege.
10 of 29, lines 13-14 it is dubious to assert that the "public speculation" has any bearing on the legal issues. Rather, we have clear affidavits, signed under penalty of perjury. The court takes those affidavits, and for the moment admits them as true to simply support the claim, and asks whether the case can go to trial.
Whether those affidavits are or are not true is matter for trial, and not something that can be argued now. Rather, to suggest that there is "speculation" misses the key problem for AT&T and the government: There is, on the record, admissible evidence, not speculation, about what has been happening.
The governments arguments, by relying on the case cited, fail to show the affiants are engaging in speculation; rather, they have filed affidavits making affirmative statements about personal knowledge.
776 F.2d 1236, affirmed, "continued litigation would result in the disclosure of privileged state secrets" -- meaningless, in that there is not need to disclose any state secret and still prevail. The government's burden is to prove that the trial cannot proceed, even if the privileges were invoked. The government fails to satisfy this burden.
If the government had read closely, it would have read,
"The Navy's counsel also indicated that the Navy intended to file a motion to dismiss the case on the basis that the trial would lead to the disclosure of privileged state secrets."
Also is the key phrase [emphasis added, "When the state secrets privilege is validly asserted" -- IN this case, it is a dubious claim for the government to make that privilege is or is not being appropriately asserted. You have to appropriately assert the privilege, not rely on dubious claims or speculative reference to potential harm that may happen, regardless those facts not being disclosed.
Recalling the dubious citation of Note 26 from Reynolds, if there is no requirement to disclose information to prove the illegal conduct is occurring, then the government has not appropriately invoked privilege to bar trial.
There is no basis to assert that this disclosure would occur in the FISA-NSA related litigation:
If you don’t want to follow this Constitution, we can make a new one that will force you to follow it upon pain of very nasty things. You may not have a choice, and may be excluded from any public discussion on this matter.
Contrary to the governments contentions about 96 F.R.D. 390, the court permitted the case to proceed, and required each privilege to be asserted individually. This case in no way does anything to help the government, merely affirms there are reasonable ways that the government can use to litigate a case, even when there is privilege invoked. Citing this case is evidence the government is relying on dubious claims to avoid litigating something that could be litigated on the known information.
Contrary to the government's representations about the plaintiff case, plaintiffs are not mandating disclosure of classified information to prove their case. The case can proceed to trial based on non-classified information.
The following quote is instructive, in explaining the that the case can proceed, in that plaintiffs are not asking for detailed information, only relying on public information to prove the misconduct:
A corollary to this principle is that disclosure of an intelligence method . . . (citation omitted) or goal in a generalized way does not preclude protection of an intelligence method or goal which relates to a particular time and place and a particular target. See Salisbury, supra, 690 F.2d at 971 (NSA's admission that at one time it had monitored communications transmitted between United States and Hanoi does not preclude protection of information which would reveal particular channels monitored).
- A. The government violating the law, and then hiding the illegal conduct behind a dubious claim of privilege;
- B. DoJ has admitted that the illegal activity occurred, and they did not follow FISA
- C. There is no public-civilian defendant attempting to disclose classified information as a defense as a bar against government conviction; rather, the opposite is true: The government is [a] the defendant, and [b] invoking a dubious claim, despite public admissions of illegal conduct.
In EL-MASRI v. TENET is still being litigated, as remains on appeal. Fatal to the government's position by invoking Masri is the nature of the agreements between the US and Eastern Europe: ["but it is also true that El-Masri himself was not a party to any of these secret espionage agreements or relationships. " 1:05cv1417 ] Unlike Masri who is not a party to any agreement, the American citizens are a party in the Constitution, which prohibits illegal conduct, and violation of the 4th Amendment.
What distinguishes this case from the NSA-FISA issue:
It is the job of the government to prove the evidence is not to be believed and that it has a bonafide claim of privilege; it is not the job of the public to assent to violations of the law and clearly established rights. You may be able to commit abuses in Guantanamo, Abu Ghraib, and Afghanistan; but you're not going to do this against American citizens.
464 F. Supp. 510 brilliantly shows why the FISA court was crated after the 1974-related abuses: To oversee this misconduct, and provide a mechanism to do what the courts could not, on their own, do. The Government's nuances are meaningless.
But not to be outdone, the DoJ Attorneys have selectively ignored the following fatal language in the case:
"The relief sought by the Government goes beyond the traditional remedies fashioned by the courts in order to protect state secrets or other classified information."
"The Government cites Totten v. United States, 92 U.S. (2 Otto) 105, 23 L. Ed. 605 (1875), wherein the action was dismissed on the pleadings, as authority for the drastic relief of dismissal on the theory that the privilege is absolute. That case is inapposite."
"The Government also relies on Kinoy v. Mitchell, supra, 67 F.R.D. at 9, as support for the proposition that disclosure of privileged material requires dismissal of the complaint. What the court actually decided in Kinoy, was that the Government had failed properly to invoke the claim of privilege"
"A conference for the purpose of considering procedures to safeguard state secrets during this litigation will be held on January 19, 1979 at 10 a.m."
The government has relied on a case that affirms what they say is impossible: Trial and a conference.
Thus, at footnote 8, this is an absurd retelling of what happened:
To the extent that the district court’s decision in Spock could be read to imply that
dismissal of a civil action is not a valid remedy to protect state secrets, such a notion has clearly been rejected by later cases, including in the circuit where Spock was decided.
The government's case 935 F.2d 544 states, "The precise rule under which dismissal should occur is not entirely clear," yet the government would have us believe the opposite.
The full quote requires the government to properly, not dubiously, invoke privilege, "if proper assertion of the privilege precludes access to evidence necessary for the plaintiff to state a prima facie claim, dismissal is appropriate."
The problem the government has, is that in invoking privilege, it would have us believe that the government has to protect something, which is not required to be disclosed. The government fails to show why the technical details of the program have to be discussed, and thereby protected, and remain a bar to trial; or why a technical detail -- of an activity that violates the law -- can be justified, when the activity is targeted against American citizens. This is a violation of the law, per the Youngstown test, and requires the FISA court to be involved, not circumvented.
[Hudson 891 F.2d 414 ] collapses when reading, "Further, it would permit future plaintiffs to force the military to disclose classified documents upon the assertion of a plaintiff's reasonable belief that disclosure will establish that the military has proposed an action that Congress says may be kept secret. "
16 of 19 government continues to assert that the privilege is appropriate, without showing why the case -- without reliance on technical details -- could or could not go to trial.
Hubbell 17 of 29, line 1 does not mean that Executive Privilege is an absolute bar to trial, especially in cases where the misconduct has already been admitted, and the public statements are no longer privileged.
133 F.3d 1159, Kazsa is a case that went to trial. The government fails to show why this case, which permitted and affirmed the litigation results, is of any assistance.
Again, by relying on Kazsa ["we discern no Congressional intent to replace the government's evidentiary privilege to withhold sensitive information in litigation,"] the government fails to show that privilege is a bar to trial on matters which the evidence is already known and public inter alia:
Also, relying on Kazsa the government has to show that the privilege was properly invoked. The government has failed to show that the court could not review the public information, admissions, and evidence that the FISA requirements were not followed. This is a separate matter from the NSA technical details.
Kazsa is also fatal to the government in that there is no government action to mitigate the illegal activity,
"The district court held that any effective relief to which Kasza might otherwise be entitled . . .on her inspection and inventory claims was eliminated by EPA and Air Force's post-complaint performance of the inventory and inspection report of the operating location near Groom Lake."
Unlike a toxic waste dump and environmental disaster, the NSA and DoJ cannot retroactively "undo" what has already been a violation of the Constitution and FISA. Arguably, putting aside the potential Presidential pardons, the appropriate "clean up" in re FISA-NSA-DoJ is to put the DoJ attorneys in jail with Addington, Gonzalez, Yoo, and the rest of the buffoons.
Not to be lost is the issue of who has the burden: The government must show that its claim of state secrets is not dubious. They have failed to show that the privilege is an absolute bar to trial, or that the privilege has been appropriately invoked.
Rather, the case law the government provides clearly shows that privilege is not absolute, and that litigation can proceed, despite classified information.
However, unlike the cases presented above, the government cannot show that even if there was no classified information, that a fair trial could not occur to review the known information:
The details of how that occurred, and what was done instead are irrelevant. IT does not matter that DoJ set up an other oversight system within DoJ and NSA. The FISA court requires the opposite: The FISA court involvement. This Executive and the DoJ Attorneys ignored that requirement.
The issue is not what does the NSA physically do, or how they technically do this. The issue is whether the government has properly invoked privilege as an absolute bar to trial; or whether the trial could proceed on the basis of what is known and not classified.
To properly invoke privilege, privilege information cannot be disclosed. DoJ's error is in having a President in power that likes to talk, and not keep his mouth shut. It would be best if the President stopped talking to Condi, and more appropriate if he talked to Laura.
[ 18 of 26 ]
21 of 29 The government absurdly argues that 1806 does or does not say something only about disclosed activity. This is absurd; FISA applies regardless whether the conduct is or is not disclosed. In fact, at the heart of the government's case (we thought) was the desire to not disclose the conduct. If the government doesn't want to disclose the illegal conduct, does that mean that FISA doesn't apply at all? This is absurd, in that DoJ has already affirmed in this motion the applicability of FISA.
Note closely at the bottom: [ Click ]
Where there is no evidence of compliance, there is no confidence of compliance.
However, today's situation is different: We have fatal admissions contrary to the government’s interests: Were there are fatal admissions that there was no compliance, there is a violation.
The government's version of how 50 USC 1806(f) applies is absurd 50 USC 1806(f)
FISA applies to a much broader range of people than the narrow construction the government invokes.
An aggrieved person is not limited by 1806(f), but as defined in 1801(a).
(k) “Aggrieved person” means a person who is the target of an electronic surveillance or any other person whose communications or activities were subject to electronic surveillance.
1806(f) and 1810-relevance have no meaning when discussing 1801(a) and "aggrieved person."
We can only wonder whether the DoJ Attorneys can actually read the statute. Based on this plain reading, it appears we have found the reason why the President has a problem: Legal counsel is (arguably) defective in that it:
20 of 29, 2-18, the government uses some fairly bizarre constructions.
20 of 29, line 6-18 there is no requirement that plaintiffs have to demonstrate anything at this phase of the litigation. The burden rests with the government: Why the state privilege is not dubious.
Whether Plaintiffs do or do not invoke a particular statute is irrelevant. Rather, 1806/1810 are merely a narrow view of how the government is to apply FISA. At the core of FISA is the review of whether the conduct is or is not legal for criminal investigations.
Lost in the discussion is the reverse situation where US citizens, wholly disconnected from any illegal activity are or are not addressed under the programs and FISA. DoJ has already affirmed that the conduct does not comply with FISA; and is supported by the Qwest affidavit.
It is premature for a plaintiff, at this juncture, to show that they may have had evidence unlawfully used. Rather, the burden is no the defendant-government, to prove the state privilege is appropriate. At best, the government is wandering into conclusory assertions about matters beyond the scope of the government's narrow burden. Despite a relatively simple requirement, the government points to the complexity of irrelevant matters. This is not a defense, but a smokescreen.
The government broadly would have us believe in a perverse interpretation of FISA: That it only is enforceable if the government discloses the illegal activity. Again, this is premature, in that the focus of this litigation at this point is on the narrow question of whether the government can appropriately invoke privilege as an absolute bar to trial; or whether the trial can proceed based on public, non-classified information.
There is no basis to believe the assertions the attorney general is making. He's already admitted that he ignored FISA; so why believe any line of arguments which tends to deny a review of that conduct. That is absurd.
Putting aside the legality or illegality of the conduct, the DoJ construction of FISA would have us believe that FISA is only applicable and reviewable if DoJ freely admits the conduct. This is non-sense. FISA applies all the time, without regard to whether DoJ does or does not agree to cooperate or disclose.
The issue which the government is using to muddy the waters is whether the FISA oversight-notification is triggered on a civilian defendant, wholly different than the instant case.
If as the government contends [22 of 29, at 1] that FISA is not the exclusive means to resolve these matters, then FISA has no basis to be relied upon to violate the warrant requirement. This is absurd.
There is no basis to assert that the issue can only be resolved by disclosing classified information.
It is false that AT&T cannot answer, as other telephone companies have responded and stated affirmatively: DoJ-DoD did not comply with the warrant requirement. There is no need for AT&T to comment on compliance with procedures or non-existent procedures, when there is no evidence of compliance, Qwest affidavit.
Whether AT&T does or does not respond has little bearing on whether AT&T did something which Qwest concluded [a] did not follow the law, [b] failed to comply with FISA: and [c] did not secure the needed warrants. Rather than sanction Qwest or distance themselves from the illegal conduct which bypassed FISA, DoJ has asserted a dubious claim of privilege. This does not create a lawful procedure out of thin air; nor does it create compliance where there was none.
Whether 1806/1810 do or do not protect the government is meaningless. The issue is whether the government will or will not admit its privilege claims are dubious; or invite greater public disdain for the American legal system.
This is absurd, in that the government is doing just this -- using a generalized theory to trump a specific statutory requirement: The executive has a ministerial duty, and no broad claim to ignore the law
Moreover, even if Plaintiffs were correct that the state secrets privilege is “just” a common law privilege, courts have repeatedly held that statutes will not be read to overcome the common law without a clear congressional expression of an intent to do.
If the statutes cannot be read to overcome common law, then there's nothing that permits the Executive to rely on FISA to trump the Constitution. Federalist 78 clearly reminds us that all conduct which is contrary to law is not Constitutional; and Federalist 10 reminds us that no man can be his own judge.
Yet, this is exactly what the Executive would have us embrace:
This is wholly at odds with the separation of powers; contrary to the intention of the framers, and at odds with the explicitly language in the Constitution which mandates an assent to law, not non-sense.
Whether or not the FISA does or does not appropriately restrict privilege is irrelevant. The burden on the government, outside FISA, is to demonstrate the privilege claim is not dubious, which the government has failed to so demonstrate. 23 of 29 ]
The government's argument fails. FISA expands Presidential power to do illegal, unconstitutional things, so long as he follows FISA. Once the President ignores FISA, his only defense is what is in the Constitution -- something he cannot rely on as the FISA is built upon the Constitution.
This is a dubious assertion, and is absurd:
Plaintiffs’ assertion that Congress can restrict Executive authority through such an unarticulated implication is simply contrary to established law.14
[ 24-5 of 29 ]
Here the government simply makes no showing that it's claim of privilege has merit. It fails to address the key objective of FISA: To ensure conduct is consistent with the law.
The government's arguments are meaningless in that they depart into the Alice in Wonderland assertion that because the plaintiffs have or haven't proven something, we have to accept the government's contention that privilege is appropriate.
This is backwards. The burden rests with the government-defendant to show the trial cannot proceed unless privilege is violated. This is not the case. There is no merit to the government's contention that the claim of privilege is being properly invoked. The government fails to show that the 4th Amendment and FISA have been lawfully abrogated by the Executive; or that the executive has done anything other that offer dubious claims to avoid a review of illegal conduct using open evidence.
It is irrelevant that the government contends Congress has not permitted disclosure of the NSA activity. The real issue is whether the government is using privilege to hide illegal conduct.
If there was a bonafide legal activity, then there would be a clean defense. The government’s defense is dubious, fleeting, and absurd. IT argues against itself, and refuses to consider the case law which openly discusses the prospect of a trial despite a claim of privilege.
The government cannot hide information that is not hidden; nor can it undo a fatal admission of illegal conduct.
The government's contentions are absurd, dubious, and not credible.
If the litigation is ended, we shall continue to draft a New Constitution which will explicitly state what cannot be done: You shall have no power to do what is not expressly conferred in Article II. That standard already exists, and is well established as a result of the Iran-Contra Affair.
Addington's arguments in the Iran-Contra Minority Report to the contrary have no legal foundation and are disconnected from reality. Your job is to review the Iran-Contra affair and realize what they did in 1987, that was not challenged as it should have been, is now the central line of non-sense behind PNAC, illegal wars, abuse, torture, and unlawful conduct direct at American civilians.
You have to choose whether you want to embrace non-sense, or embrace the Constitution. If you do not like this Constitution, you cannot appeal to "other things" as an excuse to ignore it or the law.
You are outnumbered. The world watches. Is America serious about self-government, or must it lawfully be invaded and forced to assent to the rule of law.
The world is actively preparing to do what Americans refuse to do at home: Impose order.
You have to choose whether you want the order you have called for in your Constitution; or whether you have to have order imposed by someone else. The EU has already started retaliation against the Untied States; and the Russians, Chinese, and former Soviet Republicans are prepared to move swiftly in the Crimea.
If you decide to ignore the law, and illegally invade Iran, the current American body count of a score/week will increase to many hundreds per week. That is not a threat, it is what the free people of the world have already decided they are willing to do in order to defend themselves from this reckless American government.
Time to choose whether you want to stand up to arrogance in DC now, or have to fight many more foes on the larger battlefield.
Either way, the non-sense needs to end.
You are outnumbered.
You are going to lose.
You wished this.
posted by Constant @ 11:48 AM
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