Grand Juries: They Can Assert Rule of Law
Tice gets the chance to appear before a Grand Jury.
If you happen to know anyone that is on a Grand Jury or may be a witness, there's something you may be interested in knowing.
Grand juries can look at anything. This means, to make a long story short, they can go on fishing trips and bring charges against anyone for any crime.
Although Grand Juries tend to stay within a narrow range of issues, it is not unprecedented for a Grand Jury to take over, and proceed to go after those who are leading an illegal investigation, or abusing power.
While before a Grand Jury you are allowed to answer questions which cite case law showing the Grand Jury needs to consider another substantive legal problem. Grand Juries are not prohibited from looking at evidence related to the following:
If you are on a Grand Jury, an interesting thing to do, in order to review the veracity of information, is to review the FBI conduct. They have something called the Manual on Administrative Operating Procedures (MAOP), which is the process by which the FBI agents are overseen. You are permitted to review the credibility of the FBI agent, and determine on your own whether they may have other motives.
You may consider, for example, information related to DoJ and FBI presence at Guantanamo, and their knowledge of war crimes.
When you review whether there are or are not bonafide claims of leaks, have you considered the opinion of the court that says state secrets are not absolute.
For example, when the information is already known, and the President has publicly admitted things, it's meaningless to assert that there's been a release of classified information.
Rather, when you consider the NSA illegal activity and allegations of leaks, consider the other issue: Non-classified sources (Bolton) did confirm that the NSA was engaged in domestic surveillance.
Also, non-classified information, when combined with other open source material, does create a clear picture of what NARUS, AT&T, and the billing companies are likely doing.
Open source information tells us many things about the NSA ground stations, and the likely interface systems the NSA uses to engage in domestic surveillance.
Also, using the statutes, and inconsistent statements of the Attorney General, it is possible to make something called, "Adverse judgments": These are conclusions of law that you as a Grand Jury member may make using any method you deem appropriate.
For example, you may conclude that the objective of the prosecution is for an improper purpose such as retaliation; or you could conclude that the personnel providing you information are only giving you a slanted view of whether that information is protected. It's one thing to assert that something is or is not classified; quite another to assert that something that is publicly known cannot be discussed.
Here's the open information about the AT&T-NARUS connection. Ref. The problem NARUS has is that they've made unconvincing assertions.
There's plenty of information about the NSA Ground Stations that integrate with National Reconnaissance Office satellites. Ref (To find more, type in "satellite" at this link: [ Ref ] to find the test procedures which are publicly known and used when trouble shooting an STA system that integrates with an optical fiber splitter system. This system is what is known to be used by the NAVY when tapping into undersea optical fibers around the globe. AT&T and the Government want you to believe this is classified; it's actually openly discussed, and it is not legal when done without a proper FISA warrant. ]
You can ask the NAVY about the training it provides to splice into AT&T systems: Ref Kevin Barks may be an interesting person to interview. Here are other people working for the contractors the Grand Jury may wish to subpoena: Ref
Again, the issue isn't whether there is or is not a power to gather intelligence. The issue is whether that action is or is not consistent with the FISA requirements to get a warrant, even during wartime. The fact that DoJ Staff attorneys have been surfing the internet on non-official sites destroys any credible contention Gonzalez asserted before Congress that they "didn't have enough staff" to get the warrants. The DoJ Staff had the time to make updates to websites wholly unrelated to "the pressing" problems of the day.
For details: Ref: Look for the phrase: [ So "busy" doing FISA warrants, DoJ ] and you will see the DoJ Staff IP numbers, and their updates during the time that Gonzalez would have the world believe, "We were too busy."
Whatever.
They were too lazy to follow the law.
The IP numbers you want to look for in this information start with "149". As you dig into this mess, you're going to be able to construct a timeline:
Bottom line is that the DoJ Staff knows that Gonzalez is lying, and yet they have failed to provide this information (related to unprofessional conduct) to the DOJ OPR for investigation. This "failure to inform DoJ" is a subsequent violation of the DOJ Staff attorney professional attorney obligations.
Yes, the Grand Jury can provide information to the court recommending attorneys be indicted, and subsequently investigated for disbarment. That remains an option.
The DOJ Staff is well known. They can be identified through their DC Bar number. Here is a sample list of DoJ Staff, with sample DC Bar numbers. [ Ref: Scroll to "Michael K. Atkinson" and the names/DC Bar numbers that follow] You can use this information to cross reference with the DOJ OPR complaint files; then compare the attorney involvement with Viet Dinh, Gonzalez, and other DoJ Staff attorneys and come to some reasonable conclusions:
Short answer: DoJ Staff attorneys are in trouble, didn't do their job, have long known there is a problem, and have failed to do what they took an oath to do: Ensure the rule of law and Article 82 of the Geneva Conventions and FISA were followed. Hamdan reminds us that requirements are to be followed, not explained away. The DOJ Staff cannot explain their malfeasance and reckless disregard for their DoJ OPR reporting requirements. The only explanation is that they were so clueless that they had no idea what was going on, only raising doubts as to their fitness to practice law or hold any supervisory position.
Again, the issue is once the Grand Jury decides whether it was malfeasance, or supervisory-attorneys in DoJ not doing their job, this becomes another ABA reporting requirement to DoJ OPR.
The model rules then attach themselves to the supervisory attorney, and this is something that the DoJ Supervisory staff attorneys know they have a problem: Failure to adequately oversee, intervene, stop, prevent, and otherwise remove themselves once they were aware of the illegal activity. This is the basis for the war crimes prosecutions against the German legal community following WWII.
Yes, the ABA knows it has a problem as their staff has been specifically identified as engaging in similar misconduct; and they know or should know that the public is aware of their non-official use of ABA resources for non-legal work. Ref This is the IP number for the ABA staff: ref; and you can confirm by the dates that they continued to make updates and changes after they were well aware there was a known discipline problem with using ABA resources for non-official business.
Perhaps the Grand Jury may find this outline useful when making recommendations as to what needs to change in the American Bar Association oversight, not simply within the ABA, but what tools We the People need to better audit, test, and review the ongoing compliance-noncompliance issues when DoJ OPR is blocked: Ref
Again, under the Model Rules once the DC Bar-related personnel were aware of the misconduct, what efforts did they take to investigate and ensure there were systems in place within the ABA once the ABA staff was aware of this conduct. You can check the ABA IP and cache information for access to this information: Ref
The problem is that the ABA is not able to claim privilege on matters that are now public:
Nothing matches. They know they have a problem, have done nothing to comply, and hope that they can shift attention from their alleged complicity in illegal activity and war crimes to something else.
Small problem: Now the Grand Jury has all the IP numbers, and they can make their own judgments about the DoJ Staff conduct.
The short answer is that nothing the ABA or the DOJ Staff is doing is protected: They are openly leaving evidence in plain view of indicators of criminal activity. This opens the doorway for the Grand Jury to invoke SAS99 and point the full force of the Justice system at the auditors:
When there is an absence of evidence where there should be evidence, the Grand Jury is permitted to make adverse inferences under the Federal Rules of Evidence.
Take careful note: The same firm, JP Morgan, which was held to have not adequately retained e-mails, was one of the financing entities supporting NARUS, the firm working with AT&T to splice the optical fibers and analyze it with the Semantic Traffic Analyzer.
Here is the court opinion on JP Morgan: Ref.
The issue the Grand Jury will want to explore with the US Attorney is the following:
In the late 1990s, several of the auditors had conflict of interest problems in that they were providing consulting services to the very firms they were auditing. Putting aside the conflict of interest, the net result was a number of SEC findings and sanctions.
Your job on the Grand Jury will be to explore the issues of the JP Morgan e-mail, and the potential agreement the corporate officers had with the auditors to not do what they should have done: Ensured that the IT-auditing tools caught the problems inherent in the NARUS-STA and AT&T systems. The auditors using Generally Accepted Auditing Standards (GAAS) should have reported these internal controls problems to the corporate boards. The Grand Jury should ask for this audit memoranda/working papers; if the information is not available, you are encouraged to review these auditors’ track records before the Securities and Exchange Commission: Ref
To take the broad view, the JP Morgan missing e-mails are from the same period of interest between 2000 and 2006: Events related to 2004 activity. The court has already made adverse judgments about the missing e-mails; it is possible for the Grand Jury to make more adverse judgments about JP Morgan’s objectives in deleting e-mails, as they relate to possibly hiding evidence of illegal activity in NARUS, AT&T, the DoJ Staff, NSA and White House.
Here is a copy of the Court's opinion concluding that the claim of state secrets was dubious. Ref
As further evidence of the apparent AT&T-led effort to mislead the public, you are encouraged to compare the Judge Walker opinion with a sample public argument, showing that the public commentary and government arguments are fleeting. Ref
One thing you may wish to consider is the ORCON requirements Ref and ask whether the real people who have violated the law are those who are waging illegal war, violating Geneva, and not following the FISA and Constitution.
You are also encouraged to consider making portions of your final report public. This is how you can do this. Ref
The Grand Jury is allowed to review the DoJ OPR standards of conduct, and the American Bar Association rules of professional conduct, and make recommendations to the state bar whether various DoJ Staff attorneys have engaged in misconduct.
Consider pages 9 through 15 of this document showing the problems with the DoJ OPR staff is having. Could your current focus be something that is part of a larger effort to spend time on the wrong issues, and distract attention from the DoJ Problems?
It is curious that the same level of interest that you as a Grand Jury may have been encouraged to have when looking at individual conduct is not shared by those who are on the DoJ Staff. Namely, it's one thing to empanel a grand jury to look at leaks; quite another for that same DoJ to block a balanced review of alleged DoJ attorney conduct.
As you interact with the FBI, other attorneys, and prosecutors, know that they have certain standards of conduct they are supposed to follow. You as a Grand Jury member may issue in your report findings and if warranted indictments, against those who conclude have violated the law or engaged in conduct that is in contravention with their professional standards.
Here are the standards the US Attorney is supposed to follow: Ref Ref Ref This is something the Grand Jury may have to discuss with the court: Whether your US Attorney is or is not sufficiently disinterested in the legal matter to be impartial; or whether they appear to be part of an effort to silence public discussion on matters of public interest. Ref Click Link at Google>
If you would like other views on what Prosecutors are supposed to, you may wish to direct the US Attorney to provide you a copy with their 2005 National Directory of Prosecuting Attorneys, which (as a reminder) they can order here
This is what the FBI agents are supposed to do: Ref. This is what they are known to do: Ref Ref Ref
This is what the ABA model rules of professional conduct are: here with commentary with state index.
Note: Most DoJ Staff Attorneys are under the DC bar; you can review their state licensing here, and then cross reference their state of licensing with the model rules and precedents in that state. You have the power as a Grand Jury member to recommend State-level Grand Juries be empanelled to review other illegal activity you choose not to pursue.
You may wish to review the DoJ OPR documentation related to peer complaints by DoJ Staff as they relate to the concerns with involvement with illegal activity, and the status of ongoing investigations into the DoJ AG Gonzalez' possible disbarment for alleged perjury before Congress.
Yet, let's consider the Congress, and what is has not done:
Refused to enact legislation making the Prosecutors Requirements something that is a federal requirement. Ref
What is most curious is that at the time that the White House and DoJ AG (apparently) want everyone to look at who talked about the NSA illegal activity, there's little attention being paid to the (apparent) evidence which the Grand Jury may wish to review suggesting a deeper problem with Attorney General Gonzalez.
You will note at the links and IP numbers here, which trace back to the DoJ Staff inside the Department of Justice, the IP sites being hit are at times when the Attorney General said the DoJ Staff was too busy to review the FISA warrants. Perhaps the Grand Jury may wish to review these IP numbers, explore the DoJ Staff attorney conduct at the time that Gonzales said they were too busy; then review the detailed DoJ Staff attorney time cards and entry-exit times into their various DC-based facilities.
There is a reasonable basis for the Grand Jury to conclude that the Attorney General has not only lied to Congress, but has engaged in a pattern of conduct warranting the Texas Bar and House Judiciary to review for purposes of disbarment/impeachment.
House Rule 603 permits a Grand Jury to formally issue a report called an indictment. This indictment is something that the Grand Jury may use as a vehicle to outline allegations of criminal conduct that the Grand Jury wants to present to Congress.
House Rule 603 is a means by which a Grand Jury can issue charges against any Federal Officer, and then present that indictment to the House for a vote. At that juncture, the Grand Jury's job will be done.
However, Grand Juries are permitted to make adverse inferences about the non-response or lack of interest in conducting an investigation as evidence of their interest in their 5 USC 3331 oath of office.
In other words, the Grand Jury's indictment can be used as a vehicle to test whether the Congress, through 5 USC 3331 is also violating the law, subjecting Members of Congress to close scrutiny for their alleged complicity for failing to stop illegal war crimes. It is not unprecedented for a Grand Jury to expand an inquiry; nor is it fair to say that Members of Congress are immune to investigation by a Grand Jury for their complicity in war crimes planning or failure to prevent illegal activity.Ref
As you explore the information from the NSA, keep in mind that you are able to review information that may be selectively screened or presented in a light most favorable to the government.
You as a Grand Jury member have the opportunity to stay focused on the FISA statutes, and clear Constitutional requirements.
As you review the government information, you may wish to inquire whether the information you are getting is or is not consistent with other information provided to the Congress, and other personnel. If there are differences, you may wish to inquire further. Moreover, you may wish to compare the reporting requirements the President has under title 50, with the [a] actual information congress has been given; and [b] what you are provided. The issue the public is interested in: When was it known within Congress that there was illegal activity; and what solutions are needed to prevent illegal activity from occurring.
Some have suggested changes to the law. That is interesting, but at this juncture doesn't seem all that impressive as the Congress refuses to enforce the existing laws. You as a Grand Jury member may wish to explore whether this "lack of interest" in enforcement amounts to malfeasance by members of Congress, and their conduct would warrant stripping them of absolute immunity, exposing them to your indictment for malfeasance, violation of 5 USC 3331, or failing to stop illegal war crimes prohibited by the Geneva Conventions.
The Precedents of Nuremburg and Ludwigsburg may be of interest: Members of the legal community and legislature were convicted of war crimes.
America in 2006, unlike Germany of 1945, is not in the middle of an economic crisis, nor do we face a looming military threat from Russia. Rather, those who may suggest they have "special skills" and "cannot be held accountable because of their unique contribution to fight a bigger threat" are arguably being disingenuous.
There are plenty of Americans who can fill their shoes, especially when they have done nothing. Anything remotely resembling competence would be better.
Overall, your job as Grand Jury member isn't simply to investigate facts and make conclusions; you can also focus on solutions and exploring the real problem.
You may wish to expand your inquiry to review the inability of the public to adequately oversee the Congress; and methods by which the American Bar Association and DoJ Staff have jointly agreed not to enforce their peer-reporting requirements to the DOJ OPR.
You may also wish to make conclusions that are outside or contrary to the explicit law; and define things as they should be so long as the ultimate objective is to protect the Constitution. Again, your job isn't simply to act as a rubber stamp, but to help frame the debate and lead the questions into a direction that will find out whether the statutes you are being asked to enforce are or are not constitutional, and what is ultimately the best thing to do to protect the Constitution.
Our system of government is a separation of powers. Some have it in their head that they can write new legislation, not enforce things, or assert that the Constitution is debatable. In your final report that we hope you are successful in having published, it would be interesting to hear the Grand Jury's comments on what legal requirements the Government regards as discretionary. For example:
Why are clearly promulgated FISA requirements debated?
How is the Hamdan case, as it relates to legal requirements, being applied to the FISA requirements?
What can we learn from the government's conduct in re Hamdan-Guantanamo (as it relates to ignoring clear requirements) and apply that conduct to guide us to questions and a line of inquiry related to the FISA-NSA issues?
In so many words, the Grand Jury is able to do what it wants so long as you are asserting the rule of law and the Constitution.
The Grand Jury has no limits, no bounds other than the rule of law, rules of evidence, and the expansive view you may take on the Constitution and what is or is not lawful. You get to decide.
As you continue with your work, do not be fearful or mindful of how the public may or may not respond. Your job is simply to conclude facts and then the public will digest what is happening.
Do not be concerned with larger issues in Israel, or what may appear to be government claims of larger crises. Your job as a Grand Jury member will continue; We the People are here to ensure you are safe, and that you can continue your important work at home, while lawful combat is waged abroad. The two efforts can continue in parallel and you need not be worried that it is an either-or option.
As you observe the court, be mindful of the Judicial Cannons which outline what a Court is and is not permitted to do. You as a Grand Jury member are encouraged to review these standards not only to familiarize yourself with the court duties and obligations, but to get a sense of how you can assist the court in performing your duties. Be mindful that you are not an employee, but you are a Grand Jury member with the power to do extraordinary things:
It will be interesting to see how far you ultimately go, what you choose to review, and how far you are willing to dig into issues. You are free to ask anyone for assistance, and you are encouraged to use your collective minds to keep one thing at the center of the discussion: The Constitution.
After you finish your important work, there will be other Grand Juries who may learn from you and your published report. They too will have a chance to explore evidence, make judgments, and inquire into both sides of the argument.
Notice as you do your work whether the adversarial system of justice is working; and if there are problems perhaps you may have a sense of why other nations are reluctant to embrace what may seem mysterious. On the other hand, perhaps there are things that you learn that you may wish the public to know in terms of what should inspire anyone to have confidence in the process of fact finding and deliberation.
Again, if there is something you would like to see happen, there is nothing stopping you from working to support that lawful outcome. The world may learn quite a bit from you: What is in the NSA, how illegal activity is planned, and the methods that a government uses to dissuade reports of illegal activity.
As you dig into the NSA compartmentalization, consider whether there might be some reforms in how it is overseen, and monitored. On the other hand, perhaps the system as designed is sufficient and the real problem was with enforcement, application, and training.
As you review the matters, consider the auditing standards that Members of Congress and the Staff Attorneys should know well.
Keep in mind the DoD Joint Requirements Oversight Council [JROC] process Ref Ref, and NSA's Thinthread which was designed to comply with the FISA warrant requirements. Ref
You could review the JROC documentation related to the NSA programs and inquire into why these standards and known requirements were first approved, but then not followed; while at the same time NSA personnel were publicly saying the opposite: That there was fully compliance with the laws.
This is impossible.
ORCON states it is illegal to classify information related to illegal activity and war crimes. Ref
As with attorneys and prosecutors and FBI agents, auditors have standards of conduct.
Make sure you are willing to challenge the statements of the expert witnesses that claim to know something about government auditing.
The Code of Federal Regulations provides a useful guide to what the NSA was supposed to do. In those guidelines are clear requirements to document reasons for not investigating things.
Consider:
Let's consider the Bybee and Goldsmith memos as they relate to the DoJ veracity. A plain reading of the DoJ Office of Legislative Counsel's memoranda suggests the Staff Attorney in charge was not being truthful or candid in written statements to Congress; and may have made misleading statements before the DC Bar on whether the US Constitution was or was not being followed.
You'll find the written statements here: Ref
Here is the analysis of the DC Bar speech: Ref
As you review the information related to the NSA activity, it's also important to understand the nature of the briefings given to Congress following the disclosures. It appears as though Congress has been given burdensome technical details with the express intent of confusing them, and changing the subject from whether there has or has not been a violation of the law; to whether the NSA capability should or should not be used.
To be clear, nobody is saying that the President should not engage in intelligence gathering. The issue is whether the standards he agreed to between 2001 and 2006 were actually complied with; or whether he was going through the motions of compliance, while he was actually violating the law.
When considering the full picture, I would hope the Grand Jury review the following issues:
Your final report and public indictments will be considered as we draft a New Constitution. The President, the DoJ Staff, and the American Bar association have had the misfortune of being banned from the deliberations.
However, the Grand Jury and your work is a separate matter.
As you continue with your work, consider the extent to which the public has to know the statues and laws of war better than the DoJ Staff and the Vice President's chief of staff: Why does the public have to know:
The answer is simple: We the People are the sovereign, and source of all power. We can delegate, oversee, and take any lawful action against anyone who defies us. For us to ensure that things are right, We the People have to know more than those we hire; then lawfully, swiftly remove them from the political and legal landscape when they abuse power and violate rights.
Our agreement stems from a simple promise that in exchange for us delegating our power and absolute right to wage lawful war, a government in exchange will protect our rights, and promise not to abuse power. In exchange for that, we have agreed to confer on them certain formalities and privileges known as payment streams and privileges. In return we expect that power to be appropriately used to do what we have otherwise agreed not to do: Use power to protect rights, not abuse rights or our trust.
At any time we may revoke that agreement through a solemn ceremony and the process for doing this is well discussed in Federalist 78.
Power has responsibility. Those have been delegated Our Power have the responsibility and privilege to be trusted to do things. When they abuse that trust, then use that power to target the source of their authority – We the People -- they are not simply a threat to the Constitution, they are a threat to We the People.
This government has to decide whether it is serious about doing what it promised; or requires We the People to create a new mechanism that forces them to do what they otherwise only give lip service: Assent to the rule of law. That mechanism can be voluntarily imposed through oaths; or it can be imposed by force through a court order. At the extreme, when actors refuse to assent to the rule of law, and choose to illegally use force and power to avoid consequences, then they are lawfully entitled to be targets of lawful use of like force. The court may choose to immediately assert this power through the bailiffs and US Marshalls; at the other end of the spectrum is the lawful right of We the People to openly discuss this abuse of power, then decide what must be lawfully, peacefully done.
The Grand Jury's role is but one step in this process: To solve problems, and ensure that the rule of law prevails. Our job, as always, is to monitor and lawfully inject ourselves into the systems that have failed and create a new system that works, not does more of what they promised not to do: Violate rights, and abuse power.
Those who do not do what they agree to do are not worthy of continued trust. Whether they are in DoJ, on the DoJ Staff, or a close friend of the Vice President is of no consequence. They all agreed through 5 USC 3331 to do what they refuse to do: Assent to the Constitution.
Although they have no option, they incorrectly believe the Constitution is a debatable point. The only relevant debate is whether the Grand Jury will or will not debate the evidence that shows they have defied their oath, violated the laws, and have engaged in conduct that warrants public trial for illegal activity.
By mandating that the Grand Jury review these issues, the Executive Branch has opened itself to the Grand Jury.
They wished this.
posted by Constant @ 11:46 AM
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