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If it's more than 30 minutes old, it's not news. It's a blog.

Saturday, July 08, 2006

Hamdan: Revisiting Memoranda and Testimony

Hamdan affirmed the importance of following lawful procedures, prompting us to reconsider the Gonzalez testimony and other FISA-NSA information. However, putting aside the Member of Congress complicity in war crimes, Hamdan raises significant challenges for the Senate Judiciary Committee:

  • The (non) credibility of audits; and

  • False oral and written statements by Gonzalez, the Vice President and President to Congress.

    The indicators warrant increase in oversight and audit scope by more serious leadership, management, and investigators.

    * * *

    Hamdan doesn't give the President, Vice President or Gonzalez discretion: They laws are requirements, not discretionary.


  • Feingold letter asserting illegality/non compliance with procedures, which Hamdan says is not allowed.

  • Specter letter; Cheney's response; and analysis of Cheney's inadequate response Ref

  • Hoekstra memo: POTUS ignoring Title 50 reporting requirements; Hamdan affirms that requirements must be followed. [Ref ]

  • Contrast the last page 4 of 4 Hoekstra letter with Page 1 para 4, lines 1-2 of the Specter letter: Common communication problem from the White House. Yet contrast this with Cheney's 1987 comments in re Iran-Contra: [ We want to have investigations Ref ]

    Hoekstra wrote in his letter 18 May 2006, page 4, "In the next few days I will be formally requesting information on these activities." Ref. Howeer, recall the lessons of the intelligence committee Chairman: He makes inconsitent, disingenuous statements: [ Ref ]

    What happened to Hoekstra's promise to follow-up? Presumably, the Senate/House Judiciary/Intel committees are sharing information: If there was "Hoekstra oversight-follow-up," why did Specter on June 7 2006 issue his letter to Cheney (three weeks after Hoekstra letter) reiterating the concerns with lack of White House information, which Hoekstra's "follow-up" clearly didn't address by June 2006? Something's not happening: Cross flow of concerns/oversight/follow-up between the House-Senate Intelligence/Judiciary Committees. Yet, when concerns with (lack of) communication has been raised, the White House has (incorrectly) asserted that things are just fine.

    Recall, RNC has the same Members of Congress the "Joint" intelligence committee; however, Feingold/Feinstein emphatically report, "We haven't been given what the White House said we've been given." Adding more smoke to the distraction, Cheney incorrectly stated that the overlapping Senators on the Judiciary-Senate committees meant only the Intelligence Committee would need to review the matters. However, it is other non-Senate Judiciary questions which are (a) reporting the problems; and (b) prompting the White House non-sense denials.

    Contrast the Cheney assertion that Dewine [p. 2 of 3] would be able to handle the coordination with Specter; yet recall from Hamdan, the court admonished Senators monkeying around with the Senate testimony, raises doubts about the RNC veracity with the court, not to mention the internal RNC problems: they’re willing to deceive the Supreme Court, it’s nothing to them to lie to their peers, criminal investigators, or the public.. [Hat tip: Feline]

    It's July 2006, two months after the Hoekstra letter, conveniently closer to the November election. Despite the Hoekstra-Specter memos of “concern”, Congress isn’t showing they’re serious about getting real answers before November. Given what was known in the RNC – that nothing was being done, as is the case with Phase II – there’s no reason to believe the Members of Congress are serious about providing the needed information to the voters before the November 2006 election.

    The problem is that Hamdan doesn’t provide the RNC with new information: The RNC, as evidenced by the Specter-Hoekstra memos, knew well before Hamdan that there was a problem with non-compliance with procedures and legal requirements. The President stated in Chicago that he was “waiting” for Hamdan; in truth he’s delaying -- creating illusory “new pieces of information" to justify new decision points -- but these are disingenuous efforts, exactly what King Charles I in the UK in the 1600s after the Grand Remonstrance. As then, the leadership is merely going through the motions of a response, but have no intention of implementing the needed reforms or oversight. Rather, it's likely they'll do the opposite: Continue to engage in more illegal conduct.

    We can only make adverse inferences: Even after they document wrongdoing, this Congress is not effectively coordinating oversight and shows it is not serious about fact finding or conducting, what Cheney argued for in 1987, investigations. When speaking of war crimes, violations of the law, and Congress’ role in policy making and oversight – issues which Hamdan raised -- this is malfeasance and criminal negligence, amounting to 5 USC 3331 violations of their oath of office Ref ]

    * * *

    New Leadership Needed: RNC Cannot Be Trusted To Do What Should Be Done

    It’s the job of the Executive and RNC to explain their joint oversight plan to protect the Constitution: They have no plan; and there is no plan to get a plan.

    Rather, they absurdly argue they deserve more time and should be given a second chance after November. Yet, they’ve exhausted the voter’s reasonable patience. A new crew is needed to explore the issues and ensure the rule of law prevails, as Hamdan says should be done.

    * * *

    Hamdan: Revisiting Gonzalez Testimony

    Hamdan raises some interesting questions about Gonzalez’ 6 Feb 2006 FISA-NSA Testimony to the Senate Judiciary Committee. In light of Hamdan, a casual reading of Gonzalez’ testimony reveals some very interesting logic flaws which appear curiously similar to Addington’s flawed logic in the Iran-Contra Minority Report.

    These general patterns compare unfavorably with the Statement on Accounting Standard 99 {SAS 99}, the basis to increase audit scope. Members of Congress who are CPAs should discuss the reasons for not increasing audit scope.

    * * *

    Hamdan: Revisiting Other Executive Claims

    Recommendation: The Hayden testimony and Operation Falcon warrant reviews in light of Hamdan.

    The question becomes: How many other documents and testimony would have to be revisited in light of the Hamdan decision; and what is to be done differently, if anything. For example, when we take a step back from the Cheney-Specter messages, the issue isn’t simply flawed facts, but whether the legal premises behind the Judiciary Committee-Vice President assumptions are reasonable.

    By way of anecdote, let’s focus briefly on the Cheney letter in the context of Hamdan. Hamdan reminds us the procedures and requirements are to be followed and enforced, yet Cheney’s letter clearly ignore the FISA requirement stating that the FISA-like reviews occur “every 45 days or so” by a senior government attorney. This process is outside FISA, and relying on Hamdan the court would likely strike down the non-FISA procedures.

    Further, for Cheney to argue that Congress was “fully informed” is not only false, but irrelevant: FISA requires a showing of evidence to the court. Hamdan affirms the procedures and requirements are to be followed, not explained away or circumvented with meaningless attempts to comply with the law.

    In Cheney’s memo to Specter, he also mentions the possible Judiciary subpoenas which Specter discussed with the telecom CEOs. If the CEOs weren’t doing anything wrong, why resist a subpoena. Again Hamdan not only imposes a responsibility to follow procedures, but there should be a fair accounting for what has happened. Despite Cheney’s 1987 asserting that there should be fact finding over Iran-Contra, he’s making excuses to avoid the procedures, but then thwart fact finding. We conclude the 2006 and 1987 statements are disconnected with a real desire to effectively govern, but engage in a sham. That is not leadership the voters can afford to gamble with. We need solutions and compliance, not more delays in finding facts.

    * * *

    Convenient Timing: Voting-related tampering

    As you review the Gonzalez comments in light of Hamdan, it’s useful to consider the e-mail monitoring of the Miami and Beirut chatters. We judge the timing of these events, combined with the (absurd) legal arguments about the AT&T issue, are part of the Rovian effort to shift the debate from the law, onto “other things”. The question is going to be whether this pattern is revealed for what it is, or whether despite Hamdan, the voters choose to vote on the basis of fear, not on the basis of the RNC disregard for the law.

    * * *

    Hamdan: Supreme Court Caught the Fraud

    Overall, the Hamdan case reminds us that there need to be bonafide efforts to comply with procedures, not excuses to circumvent the law. The court rebuffed Kyl in his effort to insert language.

    * * *

    Risk Indicators: New Leaders Needed To Review Obvious Problems

    What follows is a list of issues which, in light of Hamdan surface when examining more closely the Gonzales testimony. Again, the goal here isn’t to provide you with something novel, but to suggest that Hamdan warrants before the election a rescrub of the Administration information we’ve been asked to believe as true.

    When we compare Hamdan to the NSA-FISA requirements, each of these problems in the Gonzalez testimony unfavorably compares with the SAS 99 indicators, which warrant an increase in audit scope. This White House is engaging in conduct to mislead investigators, and otherwise corrupt lawful oversight.

    The conduct is no different than what a CEO does to mislead the auditors he has hired; then later invoke the worthless audit report as “evidence” that nothing is wrong. The problem is this Congress refuses to remove itself from the illegal conduct, because they enjoy a benefit if the illusory conclusions are embraced: Re-election.

    Defendant Media Strategy: Waging Judicial Battles Outside Court

    Many excuses to dissuade legal action, and keep the issues out of court

    Illegal Conduct

    Ignoring requirements

    Cherry picking statutes

    Defying (ir)relevant rules

    Excuses for non-compliance with requirements

    Dubious legal foundations for accountability

    Even if we are at war, this is not excuse to ignore requirements

    Invalid, illegal abrogation of laws, Constitution, and treaty obligations

    Gonzalez used false and irrelevant reasons to justify the non-lawful procedures

    Changing the focus from the illegal activity to non-valid requirements, procedures

    Illusory concerns without a balanced concern with most important legal issues and requirements

    Using arbitrary definition of activity to appear in a compliance with some that is ignored

    Change subject from standards to whether there has or has not been an (irrelevant) agreement

    Title 50: Lack of information did not trigger subsequent reporting, questions, oversight, or review

    Appealing to uncertainty over standards to review: This is irrelevant once SCOTS issues Hamdan

    Unconstitutional Conduct

    Asserting that the SCOTUS opinions do not apply

    Change subject from requirements to power

    False assertion of absolute power, without reviewing or assenting to Article 1 Section 8 restrictions or powers of the Congress to make rules

    Asserting Congressional Article 1 Section 8 powers, which Hamdan affirms are questionable, uncertain, or unclear. Acting as if Article 1 Section 8 exclusive powers were something the Congress “may suggest”, and ignores the ability of a fully informed Congress to invoke legislation, override a veto, and do something which asserts Hamdan-like assertion of Legislative control of the policy-making power of Congress.

    Abusing Executive Power

    Excuses to abuse power and violate rights

    Overstating authority and permission

    Illusory discretion

    Fanciful notions of expansive power

    Non-sense assertions of permissibility and options a odds with the restraints and requirements

    Asserting incorrectly that the language of a particular document “must” be read to not infringe with power. This is more of the Addington non-sense.

    Imbalanced arguments: Invoking an “emergency” for secrecy, but treating other two branches with disdain, violate powers, and not cooperate or submit to oversight.

    Failure to comply with reasonable questions

    Dubious claims

    Illusory excuses

    Appeals to confusion

    DoJ AG relying on an irrelevant debate/confusion of a legal issues

    Using non-sense rules, irrelevant excuses and irrelevant exceptions

    Appeal to specificity of an irrelevant defense, yet not sufficient review of the violations.

    Unresponsive to questions on DoJ reviews of NSA – actually blocking DoJ OPR reviews of the illegal conduct

    Invoking absurdity to avoid questions and (needed) Constitutional confrontation; ignoring the needed confrontation in Court over Geneva and other requirements.

    Arguing that openly discussing illegal activity will provide information “to the enemy,” yet failing to discuss how this breakdown in communication and non-information to Congress can credibly ensure that the requirements are followed.

    “They’ll get the info” (as an excuse to invoke secrecy over issues of violation of the law) fails to answer who the real enemy is: The Constitution, courts, Congress, or the people

    No explanation for “if violating the law, would like to know why” – why this standard (used as an excuse to violate the law) would not warrant POTUS from recertifying Fitzgerald as a special prosecutor to enforce the law.

    Appealing to confusion: Waffling on what POTUS could do, which SCOTS clearly said, “No” and “not allowed”

    Reliance on (Irrelevant) Non-Expert Witnesses

    Relying on dubious experts to “justify” not following requirements

    Meaningless reference to people, without consideration to the #1 priority: The law

    * * *

    Election Debates: Legal Community Ineffectively Challenges Dubious Legal Claims

    The general rule of Hamdan is that requirements are to be followed, whether they are in the Constitution, statute, or international law. As with the Iran-Contra affair, the Addington-Cheney approach has been to first assert that the laws do not apply; those laws which cannot be explained away, there are irrelevant excuses and artificial “exceptions” to do the same: Move without regard to the law.

    There’s also something curious involved in the Senate Judiciary questions. Recall if you will who was involved with the “visits” and “who returned from vacation” to provide their “guidance” and “wisdom” to the situation. The name isn’t important. The key point is that the so-called legal expert doesn’t understand the laws of war; nor do they comprehend the implications of Geneva in the Hamdan decision.

    Narrow legal backgrounds do not inspire confidence the reviews are comprehensive. When someone asserts legal credentials, but when making commentary about Hamdan is incapable of seeing the relevance of Geneva, or how Geneva was being enforced, we have no confidence that the thinking that went into the Feb 2006 questions in any way touched on the core issues of Hamdan: The broader legal rule under an agreement, statute, treaty, or other legal instrument to agree to and follow procedures and rules.

    Here are the problems with the Gonzalez-Judiciary interchange:

  • Questions not crafted with laws of war in mind; Senators didn’t ask questions with the laws of war in mind

  • Gonzalez statements issued without adequate knowledge of Geneva and laws of war, requirements

  • No adequate review of information from Gonzalez with respect to Geneva: Senators did not comprehend Geneva in their questions, or when assessing the responses; Reviews devoid of military law expertise – clueless attorneys overseen by clueless peers

    Not only was the Gonzalez testimony wholly devoid of any legal merit, but those who were overseeing the scant information were in no position to take the broader view of what Hamdan affirmed: The relevance of procedures, and the requirement to follow clearly promulgated Constitutional, legal, and governing requirements.

    Again, Gonzalez approach to the Feb 2006 Judiciary Hearing wasn’t to explain, but to engage in extra-judicial arguments that the illegal conduct was legal; and that the manufactured procedures, outside FISA, were consistent with FISA. Hamdan fatally destroys this notion, yet the problem with the Judiciary Committee is that it, as does Addington, chooses to point to the information (and non-sense legal arguments) as something that are debatable, as opposed to something that are to be sanctioned.

    Rather than focus on the conduct that was devoid of legal foundation, the Judiciary Committee between Feb and July 2006 has shifted its attention from the requirements, and focused on the (irrelevant) issue whether the procedures were or were not good for America. Hamdan forces the issue: It’s the requirements and procedures that are to be followed, and nothing else, that mater.

    All Gonzalez did, and the Judiciary committee has assented to, is a wholesale shifting of the debate from whether the conduct was or was not legal; to whether the (non approved) procedures were or were not with a good intention in mind. Gonzalez asserted these procedures were in place after 9-11, yet the information clearly suggest the opposite: That the illegal NSA activity as occurring before the (excuses) events Gonzalez-Yoo-Addington-Cheney invoke.

    It’s no wonder why there’s been no accountability: To enforce the law, you require people who now the law. Yet, the criminals are running the illegal oversight. Lawyers like Addington who have no knowledge of the laws of war making excuses to ignore the requirements; and other lawyers “overseeing” the misconduct, who also have no comprehension of the laws of war, making absurd excuses that the Hamdan case isn’t related to Geneva.

    * * *

    RNC Leadership: Fails to Apply Relevant Committee Experience

    One thing to consider why reviewing the information about the illegal activity in the NSA is the issue of auditors. There are Members of Congress who are certified public accountants and they know the requirements for internal controls, audits, and following procedures. Yet this compliance-requirement until Hamdan seems to have been lost

    When we do an audit, we’re not simply looking at numbers, but whether there is or is not a system of controls in place to effectively do what is required, identify problems, and effectively manage plans to correct problems. Hamdan affirmed the requirement to follow procedures and requirements. It’s one thing to claim that the Congress operates by committee so that the Members of Congress can apply their expertise; quite another to see that expertise applied when it is most needed:

  • CPAs have leadership requirements. Where’s the CPA leadership to ensure conduct and procedures comply with the Constitution and Geneva; where were the RNC Members of Congress with auditing expertise; how will the RNC Committees, which have on their staff CPA’s with auditing and accounting background, apply this expertise to ensure the FISA requirements are followed; how can the members of the American Institute of Certified Public Accountants (AICPA) sit idly by as Members of Congress, their peers, do nothing to ensure that the AICPA standards are applied?

  • Article 1 Section 9 requires funds only be used for lawful things. How can anyone believe the CPAs are doing their job, when we have clear evidence that money is being spent on illegal wars and Geneva infractions, in violation of Article 1 Section 9 which requires expenditure of funds for only lawful things?

  • Auditor papers (“working papers”) are subject to subpoena. Where are the working papers of the RNC Members of Congress who are accountants as they reviewed the noncompliance with Geneva?

  • There are clear SAS 99 fraud indicators, but no evidence of increasing audit scope. How do the auditors in Congress explain there lack of investigations to find facts over war crimes, despite the auditors knowing about Statement on Accounting Standard 99 SAS99, which is the basis to increase audit scope [Fraud indicators, violations of the law, resignations, arrogant attitude toward the auditors]?

  • Auditors are required to provide truthful reports, or withdraw from the audit engagement. Where are the required noisy audit withdrawals when auditors are denied the access to the needed working papers to review the (non) compliance with clearly established procedures?

  • Audit opinions have to be related to evidence and facts. What is the basis for outside auditors to issue any statements related to the Congressional processes when their peers on the Congressional committees refuse to ensure that the Generally Accepted Auditing Standards are fully applied in the area of Generally Accepted Government Accounting Practices?

    * * *

    RNC Congress: Thwarting Criminal Investigations

    Keep in mind the dance that’s been going on. The US government has shifted the argument from whether there has or has not been a crime to whether there are or are not victims. These are two different issues, and irrelevant.

    When there is a crime, as there has been with FISA violations, when Congress reviews those matters, the issue isn’t whether there is or isn’t a victim, but whether there is or isn’t criminal activity relative to a standard.

    Recall the issue of Plame. Her issues, for now, were not a civil matter: They were matters of criminal law: This means that the US government, not the victim, is the one that is supposed to lead the criminal investigation and impose sanctions.

    The Judiciary Committees comments on issues of “standing” are meaningless: It’s the role of the US government to bring the charges against the President and his co-conspirators in a criminal indictment. Even if there is no impeachment of the President, there are other co-conspirators who are subject to criminal sanctions.

    The Judiciary Committee, as Gonzalez has invoked a phony issue of “standing,” as an excuse to engage in phony oversight. [ See Comments in re 49 of 72, 21-22