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Saturday, July 29, 2006

Grand Jury Indictments Against DoJ Staff Attorneys [5 USC 3331 Violations, War Crimes]

This forms the basis for Grand Jury indictments against by-name DoJ Staff attorneys for violations of 5 USC 3331 and war crimes.

Ref: 5 USC 3331 Enforcement Against Members of Congress.

Ref: Detailed discussion, links in re Grand Jury discovery of DoJ Staff attorney 5 USC 3331 violations and war crimes.

Ref: ABA responsibilites and supporting material.

Ref: Grand Jury Indictments Against Members of Congress in light of this, this, and this [Hat tip: Cali #29; See #34]

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This outlines the basis to empanel a Grand Jury to review alleged 5 USC 3331 violations by the DoJ Staff and DoJ Staff Attorneys.

The evidence shows DoJ Staff attorneys were engaged in non-official business when the Attorney General told Congress the DoJ Staff were otherwise incapable of complying with the FISA warrant requirements because of DOJ Staff shortages.

The information relies on publicly available evidence of alleged DOJ Staff attorney non-official use of government computers, and other publicly available evidence. The public information shows that the DOJ Staff was engaged in non-official business, raising reasonable doubts that there were staffing shortages; rather it is more likely that the DoJ Staff was ineffectively managed and was not adequately overseen to ensure that it fully complied with clear ministerial duties. This is a violation of 5 USC 3331 Ref>

The information below contains:

[1] Precedents for convicting DoJ Staff attorneys for 5 USC 3331 violations;
[2] A draft Grand Jury indictment 5 USC 3331;
[3] Draft jury instructions for 5 USC 3331 indictments and conviction; and
[4] A draft discovery checklist for the Grand Jury to use when assessing DoJ Staff attorney 5 USC 3331 oath of office violations.

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449 US 539 [Standard of review: Whether the DoJ Staff attorneys did their “mortal best to discharge their oath of office”]

431 F. Supp. 2d 1159 [5 USC 3331 enforcement must state clear ministerial duties of those taking oath]


1. DoJ Staff attorneys took 5 USC 3331 oaths of office.

2. DC Bar and DoJ OPR reporting requirements are ministerial duties

3. Multiple people within DoJ knew, at the time that the DoJ Attorney stated there were insufficient staff to conduct work, that this statement was false.

4. Knowing the DoJ AG’s statements were false and misleading to Congress created a ministerial duty on the DoJ Staff and others a mandatory reporting requirement to the DC Bar and DoJ OPR to report the DoJ Attorney General misconduct.

5. During the period 2000-2006, DoJ Staff were using computers for non-official business; multiple personnel knew the DoJ Staff was using the computer for non-official business.

6. This non-official computer use is publicly known, not privileged information, and is not classified and is not a state secret nor a subject of Executive Privilege.

7. The computer use can be traced to specific computers and DoJ Staff attorneys within the Department of Justice, who at the time, Attorney General Gonzalez mislead Congress into believing that there were insufficient DoJ Staff to comply mandatory FISA warrants.

8. DoJ AG Gonzalez knew this statement was false; the DoJ Staff attorneys using the DoJ Computers during the period of interest knew the Attorney General’s statements were false; and the DoJ Staff knew, or should have known, that the DoJ Staff attorney use of the computers during the period of interest was publicly known.

9. Despite knowing, or having the ability to know, that the DoJ Attorney General statements were false and were in violation of the Attorney General’s lawful requirements to provide truthful statements to Congress, various DoJ Staff attorneys failed to comply with their mandatory reporting requirements to the DoJ OPR.

10. DoJ Staff attorneys knew that the reporting requirements to DoJ OPR were mandatory, but despite knowing this requirement failed to report the information; and/or failed to report the DoJ AG was unlawfully cooperating with the President of the United States to thwart DoJ OPR investigation into various misconduct.

11. DoJ Staff failure to report the DOJ AG misconduct is something they knew, or should have known, was not in compliance with their required, mandatory, non-discretionary ministerial duties.

12. DoJ Staff knew that the DOJ OPR was being blocked and thwarted from performing ministerial duties, and knew that the next appropriate reporting official and judicial body to report violations of the DoJ OPR policies and mandatory reporting requirements was to do the DC Bar.

13. DOJ Staff attorneys with a ministerial duty to report misconduct failed to do their mortal best to discharge their oaths of office 5 USC 3331.

14. Multiple DoJ Staff attorneys are complicit in the alleged conspiracy to violate, suppress knowledge of, and thwart investigations of 5 USC 3331 violations; and

15. Multiple DoJ Staff attorney have unlawfully engaged in a conspiracy by jointly agreeing to fail and dissuade others from reporting violations, in violation of their mandatory reporting requirements to DoJ OPR, thereby violating 5 USC 3331.


DoJ Staff attorneys knew what was going on: There was plenty of time to work on non-FISA related activities, as evidenced by the DoJ Staff access to, and updates of non-official information outside DoJ control.

DoJ Staff attorneys, working in this environment, were in a position to know, or should have known, that the Attorney General’s statements were false, and that FISA requirements were mandatory and here was plenty of time, staff and resources to comply with the FISA requirements; yet the DoJ Staff was permitted, not stopped, and otherwise encouraged to engage in non-official business during business hours.

DoJ Staff attorneys knew that regardless the truth or falsity of the Attorney General’s statements to Congress on whether there were or were not sufficient staff to comply, the requirement to comply was a requirement which the DoJ Staff failed to comply despite knowing this requirement was a lawful ministerial duty.

DoJ Staff attorneys working in this environment knew the failure to report the misconduct was a subsequent violation of their oath of office, and mandatory reporting requirement.

DoJ Staff attorneys had a duty to report the violations of the standards of conduct to the DoJ OPR

DoJ Staff attorneys knew they failed to report information.

Despite DoJ Staff attorneys failing to report this information, they continued to engage in non-official business while working in DoJ, oblivious to the fact that their on-duty conduct was publicly recorded, not protected, and well known outside the Department of Justice.

The evidence is overwhelming, probative, admissible, and fully consistent with 5 USC 3331 violations, and forms the basis for the Grand Jury to issue indictments, and expand the continuing investigation into the DOJ Staff for violations of federal and international law.

In light of Hamdan, this information is the probable cause for the Grand Jury to expand its investigation and broaden the scope of its inquiry into DoJ Staff attorney involvement with, planning of, and failing to prevent war crimes; and their subsequent failure to ensure that they perform other mandatory ministerial duties as required in Article 82 of the Geneva Conventions: That of ensuring that the laws of war were fully implemented, not otherwise ignored or explained away as quaint.

The DoJ Staff has failed to demonstrate they have used all means to do their mortal best to discharge their oath of office, and have violated 5 USC 3331.

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Draft Jury Instructions

The role of the Grand Jury when investigating 5 USC 3331 violations is to determine whether:

A. Defendant took a 5 USC 3331 oath;

B. The 5 USC 3331 oath was properly administered to the defendant;

C. Defendant knew, or should have known, that the Attorney General’s statement to Members of Congress was false; and/or the defendant knew of information that should have triggered a mandatory ministerial duty to report that misconduct; and/or the defendant knew that the mandatory FISA warrant requirement was not being followed as required;

D. Defendant was aware, or should have been aware of the mandatory ministerial duty to report misconduct and evidence of violations to the DoJ OPR or other appropriate oversight body; and

E. Defendant failed to comply with the mandatory ministerial duty to report evidence of attorney-peer misconduct.

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The Grand Jury has probable cause to issue subpoenas and warrants to gather evidence so that it may indict the specific DoJ Staff Attorneys. The information supporting this probable cause is open, non-classified, and non-privileged.

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Discovery See discussion, links

It remains to be understood by the Grand Jury which specific DoJ Staff were assigned to which specific computers. This information can be determined by reviewing the wiki information, and comparing the defendants CV (graduation, committee affiliation) with the updates on the websites.

It is not relevant that the defendants knew that their failure to report misconduct led directly or indirectly to a perception in the minds of others that nobody would find out about the DoJ Staff attorney complicity in Geneva Article 82 violations.

The Grand Jury should not be concerned with the DoJ Staff attorney’s apparent lack of understanding of the implications of their conduct or failure to comply with their 5 USC 3331. Rather, the Grand Jury may review the defendants background, expertise, ability to consult with peers, and access to the Intel Link and other DoJ LANS when assessing whether they were or were not competent in the performance of their jobs.

The Grand Jury may review any information related to the DoJ Staff attorney time cards, entry access times, work products, and other memoranda to determine whether the defendant knew, or should have known, the legal requirements they took an oath to uphold.

When reviewing the evidence, the Grand Jury may make adverse judgments when defendants have issued public statements that contradict the known facts or other publicly admitted illegal activity. The Grand Jury may review the Office of Personnel Management promotion material, awards, supporting documents for awards; and make assessments whether the DoJ Staff Supervisors were competent in their work, or whether they failed to seek assistance from the DOJ IG or other experts in navigating the laws of war and other DoJ OPR reporting requirements.

The Grand Jury may review information related to DOJ Staff attorney Continuing Legal Education to determine when the DoJ Staff was last trained on the DC Bar rules; and any memoranda, test, or other writing that the DOJ Staff attorney may have made at the time of their bar entrance exam to determine their knowledge of, familiarity with, and their ability to successfully demonstrate that they had a minimal level of competence required to comply with the DC Bar and/or DOJ OPR mandatory reporting requirements on issues of professional conduct, violations of the applicable model rules of professional conduct.

The Grand Jury may review information former DoJ Staff have provided to the DC Bar in the form of writings, statements, and other information contained in any location. The information in these speeches, documents, writings related to asserted compliance with the law can be contrasted with what the DOJ Staff supervisors knew, or should have known was occurring: There was no ful compliance with the FISA requirements; and/or the current and former DOJ Supervisory Staff were reckless in not determining that the monitoring program failed to comply with the mandatory FISA warrant requirements.

The Grand Jury may review Title 50 mandatory Presidential reporting requirements to Congress when he knew, or should have known there was illegal activity; and compare Title 50 reporting requirements with the information the President actually provided, or should have provided.

The Grand Jury may review the documentation within the Joint Requirements Oversight Council to review what FISA requirements were known to exist and fully planned to be implemented as a requirement in various NSA programs including but not limited to Groundbreaker and Thinthread.

The Grand Jury is encouraged to keep an open mind, and be mindful that there is a difference between classified information related to a technical feature of a various interception capability; and the mechanism used to comply or not comply with the mandatory reporting requirement. One is a technical nuance, the other is a mandatory, procedural step. A technical requirement and capability may be classified capability; however, this does not mean that the failure to comply with the Constitution and mandatory FISA warrant requirement is protected; rather this is evidence of a crime, which is not protected or privileged and cannot be protected under ORCON.

It is irrelevant that the President may or may not issue a pardon. The Grand Jury’s focus is whether there has or has not been a crime. It is speculative, irrelevant, and not admissible that defendant believed they were entitled to a pardon or that their work was in the interest of another cause other than their 5 USC 3331 oath of office.

The Grand Jury may review checklists, notes, working papers, and other NSA incident information discussing how various minimization procedures were or were not followed; and how the various audit test results did or did not comply with the mandatory FISA warrant requirement.

The Grand Jury may review Defense Contract Audit Agency [DCAA] memoranda, contract review summaries, and other contracted, private, or government audit working papers to assess to what extent, if any, there were discussions and concerns with the compliance or non-compliance with FISA warrant requirements within the existing NSA architecture.

The Grand Jury may review test procedures, technical working group memos, and other development effort reports showing how the NSA activities, plans, and technical capabilities did or did not comply with the known, mandatory, non-discretionary and clearly promulgated FISA warrant compliance requirements.

The Grand Jury may review speeches by former and current leadership by the NSA, CIA, DOJ, White House on matters related to planned activities to comply with the Constitutional requirements; then contrast this with the admitted non-use of the required FISA warrants.

The Grand Jury may review transcripts of the FISA court, and other classified information related to the notes Members of Congress, the FISA court, or other officers of the court have taken to determine whether the DOJ Staff Attorneys and others inside the NSA engaged in a pattern of deception.

The Grand Jury may consider evidence that the FISA Court has banned specific FBI Supervisory agents from the FISA court because of their reckless disregard for FISA Court requirements that the affidavits be true; subsequent DOJ Staff attorney discussion [on the DoJ LAN, e-mail, and Intel Link content and blogs] related to concerns or comments on whether to comply or not comply with the FISA Court banning; and make adverse judgments whether the DOJ Staff attorneys knew that there was a problem with the FISA requirement compliance process, but failed to report as required evidence of misconduct to DoJ OPR or other appropriate officials.

The Grand Jury, if denied any information, may make adverse judgments whether [a] the aim of that non-cooperating with the Grand Jury subpoena is to hide evidence that the President of the United States knew, or should have known, of the illegal conduct; and/or [b] that the President and others’ objective was to unlawfully interfere with the DoJ OPR in carrying out their lawful and mandatory ministerial duties to ensure compliance with the attorney professional standards of conduct or other DoJ procedural or personnel requirements.

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001. Can the DOJ Staff attorney be linked with a specific computer engaged in non-official business?

002. When did the DoJ Staff attorney have access to DoJ Information Technology resources?

003. Did the DoJ Staff attorney take the oath of office 5 USC 3331?

004. Was this 5 USC 3331 oath of office affidavit properly recorded and administered?

005. When was the DoJ Staff attorney assigned to the Department of Justice?

006. What evidence or written information, if any, did the prospective DoJ Staff attorney provide to the Office of Personnel Management (OPM) or the Senate prior to their hire, employment, nomination, or appointment?

007. Did the DoJ Staff attorney know what was occurring: That DoJ Staff were accessing, and making updates to non-official information at the time when the Attorney General said there were insufficient DoJ Staff to comply with the FISA requirements?

008. Did the DoJ Staff attorney know, or should they have known, that the [a] Attorney General Statements were false; and [b] that contrary to statements to Congress, the Attorney General knew, or should have known, that DoJ Staff attorneys were spending time on non-official business while at their government computers?

009. Did the DoJ Staff attorney comprehend, or should they have comprehended, the disparity between [a] how DoJ Staff were spending their time; with [b] the FISA requirements.

010. What experience did the DoJ Staff have with 42 USC 1983 and the risk that qualified immunity could be stripped should they violate a clearly established and well promulgated right?

011. What evidence is there the DoJ Staff attorney communicated with the Civil Rights division to review potential 42 USC 1983 liabilities?

012. What evidence is there that the DoJ Staff attorney, after hearing the Gonzalez testimony before Congress, made written records and memos at their computer on [a] DoJ Intel Link blogs, [b] other DoJ LANS, [c] other DoJ electronic media; or made note of the information and took subsequent action indicating that they planned to comply, not comply, or feign ignorance of something they reasonably should have known and taken action?

013 Did the DoJ Staff attorney participate in Continuing Legal Education [CLE] related to the standards of attorney conduct, model rules, or other attorney professional standards of conduct?

014. Is the attorney delinquent in their state attorney bar association fees?

015. What is the type of reported cases they have in the open legal search engines showing the range of cases that the attorney is familiar; is it is reasonable to expect that this DoJ Staff attorney with these reported cases would or would not have any comprehension of inter alia:
[a] DoJ OPR policies;
[b] Model rules of professional conduct;
[c] Mandatory DoJ OPR reporting requirements related to peer misconduct;
[d] The significance of false statements to Congress;
[e] The importance of following requirements;
[f] The apparent feigned confusion over whether the DoJ OPR reporting requirements were or were not mandatory;
[g] The potential malpractice suit implications if they have engaged in misconduct, or failed to comply with the statutes and oath of office; and/or
[h] The risk that they could be stripped of 42 USC 1983 qualified immunity

016. What evidence is there the DoJ Staff attorney was aware, of should have been aware, of the DOJ OPR mandatory ministerial duty to report misconduct?

017. What written or public comments did the current or former DoJ Staff Attorney or supervisor make that were false, misleading, and have not been properly corrected, related to: Whether there were or were no provisions in place to comply with the Constitutional warrant requirements?

018. What knowledge did the DOJ Staff attorney supervisor have, or should they have had, as a member on the Intelligence Oversight Committee and interactions with other supervisory personnel within DoJ, as to the scope of the domestic surveillance activity?

017. What public comments did the current or former DOJ Staff attorney make to the DC Bar or to other audience related to compliance or noncompliance with Constitutional warrant requirements?

018. Did the current or former DoJ Staff attorney timely correct the record upon learning that the representations to the DC Bar, Congress and others were false, misleading, incorrect, and not a true characterization of whether the DOJ and NSA practices and procedures did or did not comply with the mandatory Constitutional warrant requirement?

019. Was the DoJ Staff attorney aware that the reporting requirement to the DoJ OPR was a mandatory, ministerial duty?

020. What evidence does the DoJ have that the DOJ Staff attorney was fully informed of the DC Bar rules requiring DoJ Staff attorneys to report the misconduct to the DOJ OPR?

021. What evidence is there of the DoJ Staff attorney’s Continuing Legal Education related to [a] professional standards of conduct; [b] DC Bar rules related to mandatory reporting; and [c] DoJ OPR requirements to report evidence of DoJ Staff attorney-peer misconduct?

022. Has the Department of Justice adequately complied with the documentation requirements related to DOJ Staff attorney Continuing Legal Education?

023. What information [1] contained in the DC Bar or state-level bar records; is consistent or inconsistent with [2] the DoJ Staff Attorney training records or other representations made by the Department of Justice?

024. What electronic evidence is there the DoJ Staff has access to Intel Link [data, websites, blogs, or other procedures] related to the inter alia
[a] Geneva Conventions;
[b] Mandatory, non-discretionary FISA requirements;
[c] DoJ OPR reporting requirements;
[d] DoJ Policies and Procedures related to peer misconduct and reporting peer misconduct;
[e] Attorney-peer review procedures and internal periodic staff assistance visits to ensure DoJ Staff attorneys and peers were given feedback on potential problems; and/or
[f] Attorney standards of conduct, ABA model rules, code of professional responsibility, or other applicable attorney standards of conduct and requirements?

025. Has the DoJ Information Technology Department failed to retain information related to DoJ Staff attorney access (to Intel Link, DoJ Lans) that can otherwise be reconstructed using external, non-DoJ sources [GCHQ, non-official website access logs]?

026. What evidence does the DoJ OPR have related to DoJ Staff attorney comments on the DoJ Attorney General misleading to Members of Congress: Have Staff attorneys made timely reports to DoJ OPR; were the substance, form, and details of those DoJ Staff Attorney reports to DoJ OPR consistent with their mandatory reporting requirements?

027. Did the DOJ Staff attorney understand, or should they have understood, the Geneva Article 82 ministerial duty to ensure that the laws of war were fully implemented?

028. Is there evidence the DOJ Staff attorney, (upon learning of the Hamdan opinion that Geneva was a requirement) made a timely report to the DoJ OPR related to their DoJ Staff attorney-peer’s alleged [1] war crime planning, [2] participation, and [3] subsequent failure to prevent war crimes?

029. What role did the DoJ Staff attorney have in reviewing, editing, or commenting on Bybee’s torture memo to Gonzalez?

030. What evidence is there the DOJ Staff attorney knew, or should have known, of the Bybee memo after the Hamdan opinion was issued?

031. Should the current or former DoJ Staff attorney be reasonably expected (given their experience, skill, supervisory position, access to substantial government legal resources, position on DoJ integration and oversight committees) to have reviewed their attorney-peer conduct in light of:
[a] Geneva Article 82 requirements;
[b] the Hamdan case opinion that Geneva was a requirement;
[c] the apparent failure of their peers to fully enforce Article 82 of the Geneva requirements; and
[d] their known DC Bar and DoJ OPR mandatory requirement requirements?