NSA: 15 July 2006 Comments On Specter's S 2453
Specter Bill, S 2453 review and commentary.
Updated.
Complements other draft-comments here (updated)
I have concerns with the Specter Bill, S 2453. Overall, the premise of the bill is to “review” and to “establish procedures” to review the “electronic surveillance programs.”
Let’s presume for the sake of this discussion that the purpose as defined is what the bill is intended: “To establish procedures for the review of electronic surveillance programs.”
This implies that there are procedures available to review the activity; and that the legislation is intended to review something that, barring this legislation, cannot be reviewed, and that the current bill is specifically targeting specific surveillance activities.
All three intentions of Congress are not lawful:
This legislation appears to have one sole objective: To narrowly focus judicial attention – whether it is judicial officers, Grand Jury members, or other investigators – down the incorrect path of presuming that something new is required before there can or cannot be a review.
This premise is false, and is troubling in that the bill fails to credibly show that the existing procedures for compliance, not review as in this bill, are or are not adequate.
There is another faulty presumption with this bill, which if asserted to be a “finding” is incorrect. The Bill incorrectly presumes that the illegal activity – which is the subject of this bill – started after Sept 2001. This is incorrect.
Rather, the technical changes and NSA modernization programs required to support this illegal activity were full in place, tested, and well prepared prior to Sept 2001. Thus any “finding” of Congress relative to the events of Sept 2001, although interest, are irrelevant for purposes of reviewing the current activity.
Putting aside the issue of when the illegal activity started, there are already procedures in place which the IG and NSA director fully know require under Title 50 to report illegal conduct. Putting aside the issue of why this was or was not done before Sept 2001, and whether there were or were not sufficient contractor reports to Congress over these violations, the issue is why are we focusing attention on the narrow issue of these specific programs, when it is not lawful for the Congress to promulgate judicial review procedures on whether something is or is not Constitution—this is an eternal judicial power implicit with the Constitution, and not something that Congress can define or not define.
Rather, the concern is that Congress by focusing on whether there is or is not an agreement on the review procedures, misses the fundamental issue: Why is there not equal attention by Congress on what has or has not failed within Congress on detecting, and reviewing within Congress the facts related to the illegal conduct or the possible legality or illegality of the program.
The bill amounts to an abrogation of Legislative Oversight responsibility; then changes the subject from whether there is or is not a current oversight regime in place; and asks that we focus narrowly on the Constitutionality of the program. Congress needs to better explain to its Constituents why it is spending time stating how another branch of government will or will not perform its Constitutional mandate; while Congress refuses to engage in the very oversight it seeks to delegate to another branch. This is reckless disregard for the Congressional oversight function; and also inappropriately promulgates procedures for the Court, Grand Jury, and investigators to follow, while doing nothing to address what the NSA Inspector General has or has not done with respect to the existing monitoring requirements.
Findings [Lines 22-24] It is incorrect to narrow the focus of the Congressional finding as to whether other people do or do not use creative means to do things. This creativity is equally demonstrated within DoJ in its ability to thwart DoJ OPR, and also Addington’s efforts to thwart court detection of the illegal activity.
Rather than simply confine the discussions as to whether Congress does or does not have ea view on what the “excuse of the day is,” the correct approach would be to broadly characterize the objective of the Congressional concern to anyone -- whether foreign or domestic – that seeks to circumvent the statutes. The 5 USC 3331 obligations exist, yet this Congress refuses to assert the existing statutes to ensure that the current known activities are investigated per the existing FISA standards.
It should be a finding of Congress that those who seek to defy law enforcement are within DoJ, NSA, and the White House.
[Page 1 of 18: Section 2 (4). Lines 31-33.]
It is incorrect to state the President is the “constitutional officer”. He is the President. Attached with his responsibility for doing things, comes the obligation to ensure that his conduct is lawful. This finding of Congress fails to show how the pre-Sept 2001 NSA monitoring did or did not address what the President was required to do: Protect America.
The existing FISA statutes clearly state what is or is not lawful; these were known prior to Sept 2001; and they were violated. Subsequent to Sept 2001, the Executive and officers in DoJ, and were granted, changes to FISA. Yet these changes were not followed, and DoJ-NSA and the White House staff orchestrated a means to continue to evade detection of things they knew were not lawful.
[3 of 18, line 13] article III should read, “Article III”, as it refers to the Constitution, not constitution.
[3 of 18, line 18-21] FISA court may, on paper be the “best” forum for review, but this Bill defies that contention. If the court is the “Best forum” then there would be no need to promulgate any specific or general review requirements for the third branch on matters of pending litigation.
Putting aside the issue that the FISA court, and any other court, an review the Constitutionality of any matter at any time under Article III, let’s consider the assert that the FISA court is the “best” forum: This assertion, even if true or false, is at odds with what already is known, exists, and is a requirement; but has been ignored.
Even if we presume the FISA court is the best forum, there’s nothing to say that the current activities that are being reviewed are sufficiently known to assess whether the proposed procedures are or are not sufficient relative to the overall illegal Presidential conduct.
Congress, when it comes to matters of FISA court oversight, has no function: This is a strict Judicial Function. What Congress is doing is affecting the ongoing investigation, litigation, and fact finding with one objective: To create the illusion of oversight well after the problem started many years ago: Before Sept 2001, when the illegal activity first started.
[Page 3 of 18: Line 21] The underlying objective of this Senate bill contradicts the assertion [“possesses the expertise and discretion for adjudicating sensitive] as this bill’s intent is to outline with specificity, what the court already has the power to broadly do with wide discretion. In other words it is disingenuous for Congress to assert in line 21 that the Courts have some sort of Expertise in adjudication, when Congress through this bill attempts to eject the Court from the process and narrowly define what Congress cannot defined: How Article III powers are or are not asserted.
[Page 3 of 18, line 25-26] It is irrelevant what Attorney General Levi though the court should or should not have in 1975, as the 1978 FISA statute is the governing law. Rather, this Bill seeks to circumvent the existing requirements under FISA by asserting Levi’s comments as governing law. Putting aside the irrelevance of his comments in 1975 with respect to the 1878 issue, Congress cannot explain why it chooses to mention his irrelevant words of 1975, but not the specific requirements in 1878: The Will of the People.
It is not appropriate to imply or suggest that between 2000 and 2006 there should be unique or novel procedures that the current FISA court will not be able to review as violations of the clearly promulgated 1978 FISA statute and firmly established rights in the 4th Amendment.
[Page 3 of 18, line 31, and line 36] This bill refers to the power and discretion of the courts and prosecutors to review the program. This may be true; the issue -- why despite this broad power and authority does Congress in 2006 think it needs to promulgate procedures in this bill.
The problem is that Congressional assertions [that there is “broad power” to review programs] is a sham: Congress has effectively refused to review the activity, and not called for a special prosecutor to review the activity. Moreover, when the DoJ OPR sought to review the activity, the Congress did nothing to intervene with the Court to compel DoJ or the White House to cooperate with what the courts and the investigators have been unable to do: Gather facts.
[Page 3 of 18, lines 36-43] This discussion related to prosecutorial power, although interesting, does little to outline what is or is not done.
Putting asides its immediate irrelevance, the language does little to inspire confidence it is there to lay the foundation for anything useful. At best, the language hopes to cast a mold for prosecutors. The truth is that prosecutors are not required to comply with this narrow view of their function, neither are Grand Juries.
If Prosecutors had the flexibility the Congress would have us believe they have, then it remains to be explained why the flexibility has not been used to target those in Congress who have failed to stop war crimes, or have continued to pass legislation for illegal activity they know, or should know, constitutes a war crimes. Moreover, rather than broadly look at the NSA data mining as what it is – the means to gather information on pretext, then find an excuse to justify that illegal activity – Congress has done nothing to review the way the information illegally obtained has been used to then justify subsequent illegal acts against American citizens: Kidnapping, rendition, and detention in Eastern Europe.
If we are to cite in line 37 of page 3 of 18 what the courts may or may not have done, it would be useful to mention the specific case which that precedent exists. Although this may or may not be true, the language as it currently stands does little to inspire confidence that the supposed case has been adequately couched; nor is there sufficient information to know which other views may have been more compelling with the specific issues.
At best the language in lines 36-43 simply is a creative representation of situations when prosecutors may have desired a warrant; however, the record before us suggests that that desire needs to be compared with the abuses, and subsequent Brady violations in failing to provide to others information related to illegal conduct, or other adverse information useful to opposing parties.
Line 40 through 41 suggest that the warrant review is based on a specific standard of “common sense” and “realistic” fashion, without citing any specific case; nor does this language at any level approximate what is clearly established in the Constitution, Amendment 4: The probable cause requirement. Bluntly, it is fiction to assert that “common sense” overrides the “probable cause” requirement; and it cannot be credible for the Senate bill to contain this lesser language.
Again in lines 42-43, of page 3 of 18, we are asked to believe that the courts will permit “broad” language where “precise” langue is not feasible. This is contrary to the warrant requirement which is the opposite: That the specifics related to the things to be seized and examined are to be outlined. We can only conclude that Congress is asserting unconstitutional concepts in describing the nature of the warrant process.
Moreover, recall Gonzalez’ contention before the Congress [that the FISA warrants could not be processed because of lack of manpower] – if the warrant requirement, as this Senate Bill, were true (in that the warrants were acceptable with broad language), then Gonzalez must have lied when he said something else.
Congress language in this bill is not consistent with the Constitution, or the well known specificity requirements mentioned on page 1, line 28 where the specific warrant requirements were listed. Again, our system of laws requires specificity, because General Warrants are not lawful. This Senate bill creates legal fiction in asserting on page 3 of 18 that something, when it is “not feasible” is good enough. Not only is there no reference to any supporting law, the contention is at odds with the specific requirements this Congress (incorrectly) said got in the way of the Pre-Sept 2001 monitoring. Despite that specific or general requirement, NSA prior to Sept 2001 was still violating the law, thereby making moot any discussion in lines 36-43 over whether the warrants are or are not specific or general.
[Page 4 of 18, line 4] The Keith Case, although interesting, is from before 1978, the date FISA was passed. Whether Keith did or did not do something is irrelevant to whether the FISA Statute in 2006, as it current standers without the Amendment, is or is not enforced.
What the court said what required, permissible, possible, or desired in 1972 is interesting, but has little relevance to the 1978 solution: the FISA Act, which this Congress, rather than enforcing, hopes to dilute, and change form into something that avoids imposing sanctions on those who violated the law.
[Lines 12-15, Page 4 of 18] Congress is incorrectly stating that it has the power to grant or not grant the power to review something to the court, but makes no mention of the existing FISA statutes passed after the 1972 cases.
The objective, as outlined in 12-15 is what FISA hoped to accomplish, this is nothing new, and the current FISA requirements have been ignored. We se little evidence the new procedures, however crafted, are going to get implemented or followed when they too are just as easy to thwart. The way forward isn’t to pass new rules which get ignored; but to stay out of the way of the courts when they seek to enforce the 1978 statutes through civil and criminal litigation. Congress already made known in 1978 what the requirements are; this bill does nothing more than attempt to illegally target specific litigation with a smokescreen, but does little to address the real problem: Oblivious Members of Congress without any interesting in asserting 5 USC 3331 oath of office obligations: Protecting this Constitution from all domestic enemies, even their peers in Congress, DoJ Staff attorneys, the White House Counsel, and David Paddington.
[Sec 701, page 4 of 18, lines 25-27] If the definitions have the same meaning, Congress has no reasonable explanation why are those existing definitions, as they exist in the current FISA statute, getting enforced through the current Congressional oversight process.
Page 4 of 18, lines 31-36 is not appropriate in that anyone who passively listens to, reads, or enjoys an entertainment program on Satellite, wireless, or radio – if they receive information that is openly available, but just happens to have been classified – could subsequently be targeted. This is an overly broad definition of what constitutes illegal activity, espionage, or the “reasonable” basis to target someone for subsequent monitoring. In short, you’re creating a situation where anyone, by simply enjoying electronic entertainment, could feasibly be targeted on the basis that they might possibly receive something. This is the same as a General Warrant.
[5 of 18, line 1]: “reasonably believed” is language that is not consistent with the looser warrant language on page 3, line 43 [“more precise descriptions are not feasible.“]. Congress has not provided language that respects the 4th Amendment; and the warrant requirement is not particularized enough to pass the requirements barring General Warrants.
[Line 6-7, of 5 of 18] “foreign intelligence information” is not included on the list of definition of page 25-27 of page 4 of 18, and we conclude that this term has not been adequately defined.
Foreign intelligence information is vague. This could be something as simple as reading a want ad in the paper, or reviewing a foreign travel information, or something as benign as reading a CIA manual related to foreign areas that is available on the internet; or as meaningless as hearing a discussion about someone discussing their hunting trip, during what turns out to be a rehearsal for a motion picture screen play.
[Line 8 – 9 Page 5 of 18] Stating “where it is not technically feasible to name every person or address 8 every location to be subjected to electronic tracking;”
This violates the General Warrant prohibition; and it defies common sense that a known technical “defect” or “lack of capability” has not been solved.
Rather, what is more likely is that despite a known technical capability, DoJ Staff attorneys were more interested in surfing the internet, than ensuring that the information they had illegally obtained was timely reported to DoJ OPR. They defy their ABA obligations.
Indeed, in the age of electronic billing, and the known Groundbreaker Programs which included auditing, we conclude that Congress is simply assenting to legal fiction over whether or not specific names can or cannot be obtained.
To ask that the NSA both target a specific number, but not have any specific identifying information or probable cause is more than a Constitutional challenge, but defies reason: The only way the NSA would have specific information was if that information was from something specific. The point isn’t to target the specific person, but to target the source of that specificity to then provide that information to the court to say, “We have specific reasons why we should or should not believe this reason.”
Rather, this Senate bill permits whole scale General Warrant approaches, fishing trips, without specificity. Indeed, if there “is no time” to do something, DoJ Staff attorneys should stay off the non-official internet, and spend their time making reports to DoJ OPR about peer violations of ABA rules of professional conduct.
This language is problematic: [“where it is not technically feasible to name every person or address every location to be subjected to electronic tracking]
IN other words, the bill is defective because it permits the same abuses this bill is supposed to be addressing -- abuses which defy the 1978 FISA.
Page 5 of 18, line 11-12: “tracking immediately after learning of suspect 11
activity;“ This is problematic:
[Page 5 of 18, lines 15-17] “‘foreign intelligence information’ has the same meaning as in section 101 and includes information necessary to protect against international terrorism;”
Technically, this definition should be placed before its first use [line 6 of page 5 of 18]
[ Page 5 of 18, line 13] This language, “where effective gathering of foreign intelligence information requires an extended period of electronic tracking;” is problematic.
If there s an “extended” period to this “electronic surveillance program,“ then there is no time urgency; yet the definitions later in the bill related to “or Constitution” [Ex.: Page 18 of 18, line 4: “not authorized by statute or the Constitution”;”
The problem is that by saying “or Constitution” the program can arbitrarily be asserted to be “important” and “urgent”, but in fact, not Constitutional because the basis for the program was known to violate the probable cause standard; and contingent upon what was known to be dubious assertions of “suspicion,” far lower than the probable cause standard requirement.
[page 6 of 18, line 3]: “protect against international terrorism” – This is very vague, and could mean anything.
Overall, the way this Bill is worded, is it shifts the attention from the abuse of power by the Executive, and creates confusion and uncertainty. At this juncture, this bill does one thing: Lowers the bar on whether monitoring can or cannot occur; and based on nebulous criteria and conditions subjects anyone to potential monitoring merely because they engage in slightly individual behavior such as doing something novel like thinking.
Even when given evidence that something is an incorrect suspicion, under this bill, anything that is asserted to be suspicious – however dubious – is fair game for targeting by the NSA. Overall, that creates a place where people are simply monitored because their neighbor may have a grudge over some trivial matter. Again, the problem NSA and the FBI report (rightly or wrongly) they had is that they didn’t have manpower to review the information, screen the merits, or otherwise assess trends.
This bill shifts the attention from the defective screening procedures, and shifts the attention away from whether DoJ failed to adequately oversee/comply with the FISA requirements, and essentially legalizes anything based on the General Warrant theory. Overall, this doesn’t indicate that the leadership is serious about truly learning the lessons of the FISA abuses, much less investigate them: The abuse of power is from the White House, Addington, Gonzalez, DoJ, NSA, and the staff attorneys who have pointed to Sept 2001 as the excuse for illegal activity that started well before Sept 2001.
The purpose of this bill isn’t to address oversight; but to crate the illusion that the scope of the permissible review is arbitrarily only after Sept 2001. This is incorrect, misplaced, and entirely fictional and a gross misrepresentation that the Senate, Congress, Members of Congress, DoJ Staff attorneys, and NSA personnel know, or should know is wholly at odds with available information.
[5 of 18, line 23-24] “other device” could mean a fiber-optical system, something NARUS STA 6400 uses. However, despite this known use, we are asked to believe that nothing can be done, or that this capability was “beyond FISA.”
How will systems like the NARUS STA 6400, which supposedly “cannot be reviewed” or “fall outside what is currently capable of falling under FISA” suddenly fit within this new definition?
By all accounts, it appears NARUS STA 6400 fits under the existing FISA, should be investigated by the supposed parties that have “wide power” [Page 3 of 18, lines 31 and 36], yet in practice nothing ha been done.
Congress cannot explain why, if this definition of “other device” fully captures all systems, why the current NARUS STA 6400 would fall in our outside this definition. Either
Bluntly, this bill is irrelevant to whether the NARUS STA 6400 fiber optical intercept device or other to-be discovered or developed systems are or are not reviewed.
[Page 6 of 18, line 2-3] “authorizes an electronic surveillance program to obtain foreign intelligence information or to protect against international terrorism.”
This statement fails to ensure that all possible constructions of other illegal activity are appropriately included.
For example, this definition means that anything outside these two options is not subject to reviews. To solve this problem, the broader approach should be taken to include, “any scheme, ruse, or collective actions by one or more parties” to organize data collection for purposes of monitoring public activity.”
The next question becomes: Whether the FISA court should or should not be specifically told that it does or does not have jurisdiction on a matter that – under our Constitution – should belong to any civil court, especially in cases where the secrecy of the court has been abused, and people like Addington and FBI have lied to the court, or have failed to properly disclose that evidence as illegally obtained.
The point isn’t that the court should review the matter; but whether, once the Executive is forced to assent to this review in the FISA court, what will ensure that the Court is given deference, when it is easier to evade the court and continue to engage in illegal activity.
Overall, this bill doesn’t address the issue and requirement – which was already outlined in FISA – of oversight, compliance, and responsibility to only engage in illegal activity. IN short, this Bill would have us incorrectly believe, that until this bill was written, the FISA court and FISA legislation was inadequate, insufficient, or defective. ON the contrary, it was sufficient as written to the extent that the players knew the FISA requirements well enough to – in their own minds – crate a ruse to ignore the requirements.
Again, the issue of Sept 2001 is a ruse. Before the “big scary events” of 2001 when there was no emergency, the illegal activity during a time of peace had already started. There’s no merit to any argument that the conditions were grave, or that time was of the essence. Rather, the illegal activity was already occurring under the existing FISA requirements, and even those requirements were not followed, implemented, or enforced.
Writing new rules to sanction or endorse other conduct is meaningless given the known violations before Sept 2001.
[Line 1, page 6 of 18] “jurisdiction to issue an order under this title, lasting not longer than 90 days,’
This is problematic in that there’s nothing here to suggest that the basis for that review is related to real information, or that the court can independently use what4ever it deems appropriate to test the validity of that Executive assertion.
Again, whether the court does or does not authorize the program for 90 days is meaningless when DoJ Staff attorneys, Addington, and Gonzalez have decided to redesignate illegal activity as something that appears to sound legal. They’ve ignored the oversight process before; there’s nothing to prohibit them from violating this update, and creating another self-asserting mechanism that similarly evades the court. Rather, the fact that the clear FISA requirements have been ignored and no sanctioned merely inspires greater disdain for the requirements, Constitution, and 4th Amendment, not a respect. Again, this puts aside the issue that the illegal activity started before Sept 2001, and ay excuse DoJ Staff attorneys may have to pretend FISA requirements were too difficult to follow; strange how they seem to be able to understand how to surf the internet during officer hours.
[page 6 of 18, line 6] “court determines to be reasonable.“
The court can (as it always does) rely on reason to do or not make a determination, Congress fails to explain why this implicitly requirement of the judicial officer under Article III has to be promulgated in an oversight program; or why the current oversight mechanisms are or are not sufficient.
[Lines 1 and 6 of page 6 of 18 are not consistent] Line one says the initial authorization is limited to 90 days; Section 2 reauthorization states that reauthorization can be whatever the courts says is “reasonable.” IN other words, after initial authorization of 90 days, the Executive could induce the court to reauthorize something for another year; in the interim, under this “broad approval,” the executive could then introduce a variety of “test programs’ and “testing” and “training scenarios” that are designed to simply move from authorized-program to authorized program, knowing full well that they are outside what the law permits, but merely a ruse activity that appears to be at test, but is actually an operational (illegal) requirement.
The solution to this problem is to have a means by which Congress has open access to any activities which the Court defines as acceptable; and then can randomly sample – without any warning or notice – the fruits of that monitoring, to ensure the activity and program adequately captures the range of activities; or assess whether the executive is doing things outside what the court understands. Without this no-notice audit provision, its meaningless to say the court can or cannot review and authorize an initial program, without a mechanism that is going to timely and independently test whether that represented program is actually capturing the real activities; and then a system to ensure that the provided representations about that actual program are really linked to the real activity.
Again, putting aside the absurdity of the DoJ statements that illegal activity is Constitution, if we are to believe the argument that FISA as it standards is defective, then this Senate Bill merely permits sufficient leeway to otherwise permit was should be known to be not lawful. Said another way, there are sufficient gaps in the oversight and sanctions within this bill to create a ripe feeding ground for mischief and well fertilize the nimble minds within the DoJ Staff, intent on committing more abuses than we can possibly imagine.
[Page 6 of 18, lines 4-13]: The reauthorization, and the pending appeal process.
Let’s suppose that the ruse is to crate the appearance of a problem or assert using dubious reasons that someone is a bonafide target. The Senate Bill in no way does anything to ensure that, during the appeal process, the “imminence”-assertion is or is not bonafide; rather, it leaves open the question, during the appeal process, whether the NSA can or cannot engage in what may be dubious activity.
Moreover, the way the appear structure is crafted, the Attorney General could craft a program description that gets rejected with the intent that it go to appeal, and then resubmit the request infinite times; then later say, “We had an emergency, we really tried, but the Court would not cooperate, so we still engaged in what we asserted every 180 days was lawful.” In short, this re-appeal process crates a means by which the Attorney general can use the rejection of a program to assert its legality, and then infinitely appeal what he otherwise asserts is Constitutional. This is defacto meaningless oversight, and Executive Branch usurpation of Judicial power: The power to pre-determine the outcome based on infinite appeals, and moving without any confidence the court will have any means to stop with is otherwise illegal.
Again, the process – as this Senate Bill defines it to be – crates the same set of “requirement” that DoJ could likely use as the basis to say, “We could not spend the time getting coordination, so we appealed, abut continued anyway.”
Congress needs to expressly state that the activity, while on appeal, is subject to some special oversight, reporting, monitoring, and emphasized Congressional oversight during this pending-approval phase; with increased testing of the NSA activity to determine whether the rejected/non-approved programs have or have not been appropriately managed, overseen, and regulated under the Existing FISA and Constitution.
[Line 15-21, page 6 of 18] The pending legality challenge.
This section is problematic in that it appears to target pending litigation, which is not permissible, and a Congressional Assertion through his Senate Bill of Judicial power.
Moreover, the basis for revising/reviewing the attorney General affidavit is problematic. Congress appears to permit the AG to assert anything is national security related, thereby subjecting the review of that decision to a secret court. That is not permissible. It should be a matter, where possible, for the public to review why the activity can or cannot be reviewed in open court; and get a sense of whether the assertion of “national security” is or is not bonafide. Otherwise, we are creating another Charles I Start Chamber: Where all things, which the Executive does not wish challenged, is appealed, and hidden behind closed doors. That is not oversight, but tyranny.
That the AG has to make a oath that something is or is not related to national security is meaningless. This AG has testified under oath, provided false statements to Congress, and that has done nothing to stop the illegal conduct, nor ensure the information provided to Congress is accurate. Where needs to be better thought given to the real methods this Administration uses to thwart oversight, and then take that mindset through this bill to explore the full scope of abuses which this bill permits. It’s absurd that the Executive, intent on violating the law, is then given a say as to whether they will or will not comply with the requirements needed to solve the very illegal conduct they’ve permitted.
The real answer is to enforce the existing FISA, not create another maze for the Executive to simply plow through, and expect others to mend on his whim.
[page 6 of 18, lines 22-30] Standing.
This is a curious section. FISA Courts should be able to assert that anyone who is a US citizens has standing to protect the Constitution. The issue of harm and damages should not be limited t the instance where, through the good graces or errors of DoJ Staffers, the public finds out that they have been harmed.
The goal should be to ensure that the public has a means to have confidence the US Government will check abusive power; and not require individuals who may or may not have the resources to litigate this matter to defend what DoJ is intent on destroying.
Again, the dubious assertions of “national security”-related ha been the ruse to hide what is otherwise illegal activity before the events of Sept 2001. This asserts has been abused. There needs to be a mechanism to publicly discuss this issue, especially in cases where the claims prove dubious. There needs to be a mechanism whereby the public is given greater latitude, deference, and promise of recovery for attorney fees when the executive is shown to have committed abuses of porridge, power, and his authority. The court needs to be encouraged to downwardly adjust the presumption of privilege and “national security” after the Executive has at any time invoked a dubious claim to thwart oversight. Each time the Executive abuses the courts' deference, the less deference the Executive should be afforded.
[Page 6 of 18, lines 31-34] Remand
This process is problematic. It says that the FISA court will have the ability to review the issues (presumably keeping the information and discussion behind closed doors). Congress needs to provide a means by which the information from the appeal is made available to an individual, independent master, to ensure that the information that is otherwise classified is retained; while at the same time the public is given full access to the information needed to engage in subsequent litigation.
Think of this process as something that is a Congressionally-directed effort for the Courts to ensure that the FOIA process s trumped; and that the public is provided timely information related to the FISA court that would otherwise remain behind closed doors. The intent of this provision is to ensure that the information in the FISA court does not remain sealed forever; and unlike the Brady Violations, there is a process to ensure that the Court is fully supported to ensure the information the public may need to do what Congress refuses to do – protect the Constitution – is available for subsequent independent investigation by the media and open source investigators.
Again, the simple method would be to simply appoint a special counsel and investigate the original FISA violations; but this Congress wants to create a maze with many hidden passageways as a sideshow to their dubious oversight.
[Page 6 of 18, lines 36-40] Supreme Court
This is problematic in that by transferring the case in and out of the FISA-secrecy process, the government is going to be able to have various barriers to public understanding. Again, at each phase, the government could assert a dubious claim of “national security” while still engaging in unlawful activity, but it shifts the illegal activity to a “new program” pending appeal.
What tools does Congress propose be employed early in the process to ensure that the review process is timely, well focused, and not subject to abuse? Again, the current FISA process contains these tools, but they have not been used, employed, or permitted to work because the system has been thwarted. Creating a new maze to permit ever-broadening abuses doesn’t inspire confidence in the motivations behind this Bill, nor does inspire confidence that the original, clearly promulgated FISA, however it may have been ignored, will mean anything. The laws, when they are not enforced, inspire greater ambition to defy the fundamental laws against that abuse. The solution is to create a credible bar based on what is possible; not selectively chase what the Executive permits to be scattered about as bait.
[Page 6 of 18, lines 41-43] Dismissal
This essentially permits the Executive to assert a dubious claim of “national security”, transfer the illegal activity to another to-be-appealed program; and then deny the public the right to review the matter. Again, the issue is twofold: Litigation is not simply a civil matter; and the lack of a civil action does not send a green light that the non-challenged activity is permissible. The opposite should be true: That the burden of proof is on the government to demonstrate the legality of the program based on reliable information, not dubious assertions.
[Page 6 of 18, line 43] Dismissal for any reason
This dismissal for “any reason” is an insult to the public: It affords great deference to dubious government claims, permitting dismissal for “any reason,” which world mean that the appeals court could say, “Congress failed to ensure that the reasons were bonfire, and this is a defect of the Congress. Although the appeal may be curious, we cannot second guess the intent of Congress to, for any meaningless reason, refuse to hear the case.” That is unacceptable.
A better approach would be to define with precision the basis with which the Executive will be denied confidence that dismissals will be automatic; and remind the DoJ Staff that when they invoke dubious claims or “national security” their particular arguments will be given less deference, and greater burdens before the claim – either civil or criminal – is dismissed. The answer here isn’t to permit dismissals for ay reason; but to make it difficult for the DoJ to invoke, rely on, or not have sanctioned in open-public court dubious claims “for any reason.”
There should also be provisions whereby dubious claims by DoJ Staff attorneys trigger increased Congressional oversight, and automatic reporting to the ABA, Congress, and DoJ OPR for purposes of evaluating that attorney’s commitment to their legal duties to ensure that the claims they make are related to real issues, not desires of those in the White House to thwart oversight.
[Page 7 of 18, lines 1-7] Denials in writing
What method will be used to ensure that the DoJ-administered FOIA is not used to intrude upon the public access to the information related to these issues?
DoJ FOIAs, although different, could be used as a means to thwart public oversight and knowledge of the patterns of abuse and dubious claims the AG is making. There needs to be a provision that ensure the Court Conclusions, and other AG-related filings are not classified, especially when the original assertions and appeals were dubious, false, or wholly disconnected from any “national security” or “Constitutional power” issue. Rather, where there are invented powers, the DoJ Staff show know they face personal sanctions for relying on invented assurances that the activity s or is not legal.
Moreover, DoJ Staff attorneys should have a fiduciary duty imposed on them as an attorney working on behalf of the Constitution, to ensure that their fact finding is sound; and that the assurances that they are given during investigation and make to the court are based on information the public can get through a FOIA as a clearly established right, not something that on the Whim the DOJ Staff can selectively explain away as a “privilege document” when, in fact, they have no evidence that they took the appropriate steps to ensure the program as it is designed, employed, actually used, and formally reported then documented and audited is correct and consistent with the Constitution.
Where the DoJ Staff fails to ensure the information is bonafide, there should attack a meaningful means to attach to their nomination and appointment certain hurdles they have to face when going before the Senate Judiciary for confirmation to the Bench. If they’ve shown tan unwillingness to gather information while in DOJ, then the Senate should be given this information, and a record of their problematic compliance with the constitution and serious fact finding as a useful piece of information to test whether the nominee is or is not serious about asserting their duty, even when it is under the Pressure of the Executive. If they are not willing to stand up to abusing power while they are within DoJ, why should we believe they’ll do anything else when they are given the latitude to defer to that Executive in secret based on dubious claims?
Moreover, once that DoJ Staff attorney is given a seat on the bench, what will ensure that they are recused from the matters they should have investigated, failed to do so, and no longer are sufficient distant from. Specifically, if they’ve engage in a pattern f abuse, misconduct, malfeasance, or rubber stamping during the AG investigations, then there’s little prospect they’ll speak out when the investigation turns to their individual role; rather, there’s every reason to exercise the power they’ve been given: And dismiss the complaint, not because there was a bonafide reason, but because the public may become aware of their complicity in the illegal activity while they were on the DOJ Staff.
[page 7 of 8: Lines 14] This assertion needs to be linked with something.
As it stands, even if the oath is proven false, there’s nothing here that says Congress wont’ do – as it does with this bill – create a new system which “solves” the problems which have yet to be investigated.
It’s one thing to require an applicable; it’s meaningless when violations of that oath or requirement face no enforcement investigation by Congress, the courts, or investigators. Moreover, there’s little here to tell us what, when the oath s proven false, that Congress will be required to do or not do something; or conversely, what is to be done when Congress hides the evidence of infractions on the eve of an election as they have done with the WMD Phase II issue.
More broadly, when there is a failure to get full information; or that information provide proves to be disconnected from reality, incomplete; or there are stipulations that the Congress cannot, as a contingent factor upon getting what they are entitled, do or not do something they are required or entitled to do as a legislature (consult, seek inputs, openly disuses) the issue is that this Congress has not been given full information in the past; and the AG and White House have asserted that things were lawful, which they were not. Congress hasn’t asserted itself to ensure compliance with the laws requiring disclosure, nor enforce Title 10 requirements to report illegal activity.
Even if the President confers authority to do something, there’s little evidence abuse of that authority is going to face any sanction or investigation; or that even if the legal assertion of “legality” by the AG [at 19-21] is or is not credible; or if false, prosecuted.
Again, this process Congress has outlined does nothing to put the requirement on Congress to do something; and leaves it up to the Executive to agree to assent to something he’s already ignored: The law. There is too much deference, and not enough teeth in this bill.
[Page 7 of 18, lines 22-23] Certification
Saying that a “Significant purpose” of something is to do something that is vague is meaningless. Arguably, any asserted activity – however dubious – could be described as hoping to “protect”, yet be entirely at odds with the Constitution.
[Page 7 of 18: lines 24-25] Certification about limitations
This section is ambiguous.
[ Page 7 of 18 Lines 26-27] Execution
This section fails to capture the nature of the “substantial portion” ambiguity. If there are “consubstantial portions” (that are the real objectives), then the means to go after the “substantial target” may appear to be benign, but crafted in such as way as to permit a violation against the primary target.
Again, the point is that where there is no trust that the Government is going to do what it promises, there’s no need to make new rules: The existing rules, as they have been ignored, should be reasonable be expected to be followed. However, this Congress fails to enforce what currently exists as a requirement; even if there is a false statement, and the actual tracking targets and methods are proven to be false, there’s little prospect Congress is going to bother, as it has failed t do so with the Dec 2005 revelations.
The answer is to impose sanctions based on the law, not create a sham oversight system that fails to address Addington’s arrogance problem: A desire to do what he wants, regardless the laws. Where power is abused, that can be stripped; where assertions prove dubious, little deference is paid. Addington is like the little boy who cried wolf. He’s whined so often about “abuse of power” that when he engages in the abuse, people no longer pay attention to him; so he then engages in more abuse.
As crafted there’s no reason to believe these requirements will be followed, respected, or enforced, especially given the lazy DoJ Staff attorneys who are looking for any excuse to play stupid. They’re not playing; they are stupid and willing to violate any law, especially when they can hide the evidence under dubious claims of “national security.” National security claims are meaningless when discussing the pre Sept 2001 illegal NSA activity, but the DoJ Staff attorneys were there, whining the party line. They cannot be trusted.
[Page 7 of 18: Lines 28-3];: New warrant standard: “reasonably connected”, not probable cause
Point: Using the Senate’s “definition” of terrorism, the Senate cannot explain why innocent Americans are targeted, but there is no NSA targeting of those in the White House who are planning crimes of aggression – crimes of international terrorism.
Oh, wait GCHG monitors the White House and has all the evidence. Are you looking forward to visiting The Hague for your war crimes trial? That evidence you know is being collected, and used as the basis to render Americans to Europe, is evidence of you knowledge of Geneva violations, and a war crime. Do you like to commit war crimes and pretend you are fighting the “big evil enemy” somewhere else? You’re not fooling Americans anymore.
[Page 8 of 18: Line 3-4] Pre-program activities
Prior to Sept 2001, NSA was already engaging in illegal activities. Yet, the courts have been provided no affidavit admitting to this illegal activity.
Considering the requirement on line 3-4 (that the program date be specified) there is no reason we should believe that anyone is going to admit that the illegal activity exists, must less started long ago on a specific date.
There needs to be a clear sanction if the actual start date is different; or the program (as it currently is be called, crafted, named, formatted, organized, or massaged) has been converted into something that has otherwise been outlawed under other designations.
[Page 8 of 18: Line 5-8] Previous designations
This requires an audit trail. Something that DoJ, despite surfing the internet making wiki updates, says they “don’t have the time t make.” Who in the DOJ Staff is going to personally appear before Congress and have their toes alit if they fail to take reasonable steps to ensure that the information they have provided to Congress is complete, accurate; and that if they in any way mislead the Committee or imply activity or reviews (that did not otherwise occur) that they will be disbarred.
[Page 8 of 18: Lines 9-12]
One of the problems of the current activity-(non) oversight is the “oh, what terrible procedures, you have Mr. Wolf.” The same could be said of the new provisions in line 9-12: That they are cumbersome.
Putting aside the frivolous argument DoJ has provided to justify illegal activity (which Congress refuses to investigate), there’s little reason to believe that the procedures in the Senate bill will not face the same response: “Oh, they’re so difficult and inconvenient.”
What’s DoJ’s plans to hire people who do not provide excuses, and do something simple: Follow the law?
Despite those many ears studying the law, why is DOJ rewarding attorneys who create ways to circumvent eh law?
Again, the simple approach would be to rely on the existing FISA requirements; investigate what is known under those rules; and not create a new set of rules which DoJ Staffers then spend a few minutes devising more egregious methods to circumvent. Congress took from 1978-2005 to figure out there was a problem; it’s not acceptable to say in 2006, let’s give the Executive another 27 years to do the same under this new set of rules, and then we’ll get around to reviewing the matter. It’s quite an insult to DOJ when they attend hearings, but we find out they have no intention of following the law; rather, the way forward is to scrap this Bill, and simply go with what is known:: The FISA statute as it stands is in full force, and requires no debate, simply enforcement; the open admissions by the Executive that he has no intention of following the laws. has engaged in illegal activity without getting the required warrants, and that he’s been caught.
[Page 9 if 18: Line 2, 3] Preparation
Using “preparation” as a standard to start surveillance, anyone in DoJ that thinks about violating the law could be classified as a war criminal. What is NSA’s plan to target the DOJ Staffers who are thinking about violating the FISA?
[Page 9 of 18: Line 5] AND
And means that all of the times are requirements. The problem is that despite “and” and the clear requirement to do something, the DoJ staffers created plans and implemented illegal activities which violated FISA.
Despite a clear set of requirements under FISA, they chose to ignore those.
Congress cannot explain why a new list will be given any better respect. The way forward is to examine how the information gleaned from the NSA surveillance was used to “justify” rendering Americans to Eastern Europe, thereby committing a Geneva violation; and then what steps the DoJ Staffers failed take, as required under Article 82, to ensure Geneva was implemented, not explained away.
Once DOJ Staffers were aware the NSA data was linked with US war crimes in Eastern Europe, did the DoJ OPR get notified of peer misconduct?
When was DoJ OPR planning to provide Members of Congress and public the report related to the Article 82 violations?
After realizing that the NSA data that was illegally intercepted then triggered rendition in violation of Geneva, what was the DoJ Staff Attorney plan, besides surf the internet and make misleading and stupid comments in other official, written, signed, material statements to Congress, which Congress relied upon?
Once the DOJ Staff realized that the public knew that making statements that were false and relied upon amounted to fraud, did the DOJ Staff make timely reports of that alleged fraudulent conduct to the DoJ OPR?
The ABA Model rules require reports of peer misconduct. It is a subsequent violation of an ABA members to be aware of illegal conduct by one of their peers, but fail to report this to the bar for investigation. When did the DoJ Staff attorneys, after reviewing their Continuing Legal Education folders, decide to take action?
How many conference sessions about “relieving lower back pain” could be better devoted to more substantial things like: What to do when your back is hurting because you realize you’re a war criminal; and 10 ways to run to the DOJ OPR office after realizing that you’re been silent about evil war crimes your NSA program has helped support with illegal rendition?
After you learned that the SWIFT information was used to support warrantless interrogations, did you make timely reports to the DoJ OPR related to your peer assent to this misconduct?
[9 of 18: Lines 8-18] Validation
What written procedures will Congress require of NSA and DoJ to annually verify and demonstrate that they are in full compliance with this reporting system?
What method will be used to test, on a recurring, random, and no-notice basis the data related to the actual in this system.
It is recommended that DoJ explore the method by which DoD uses in Defense Plant Representative Office [DPRO] for Subsequent Application Reviews [SARs] when contractors demonstrate that the system they have in place is actually working and meets the requirements.
This system description is something well known to the NSA, DoD, and DOD Contractors. What plan does Congress have in place to ensure that the system – as it current is available – is being used to provide information to both DOJ, NSA< and Members of Congress?
Why are we making new rules related to NSA oversight through FISA, when the actual process to provide the information already existing under the existing data reporting requirements through Lockheed Martin, AT&T, Raytheon, Ford, and other DoD-related entities?
[Page 9 of 18: Line 23] Judicial Order
This is not appropriate. What is more appropriate is that at the front end of the NSA contract award, it be a contract requirement that the minimization procedures will be followed; and that there is a bounty program for NSA contractors to report information they are aware that demonstrates there has been a violation.
This will ensure that the contract terms, and subsequent violations by the Contractor, are a matter of contract law, award fee declinations, and other sanctions by the Fee Determining Official [FDO] within NSA.
Congress needs include in the FAR specific terms which impose civil and criminal liabilities on firms which engage in illegal conduct; and make it known that even if they get a waiver, the illegal activity is something the Securities and Exchange Commission may investigation for Rule 10b-5 violations. The tool to impose violations on firms should not primarily be the civil court; rather, there should be a heavy hammer, by way of banning for 3 years from DoD contracts not only the firm, but the principal officers. Name changes on the contracts, or resubmittals should be prohibited. People who work as an officer, who are subsequently banned, should be banned, and cannot be hired by a new firm under a new name, which substantially does the same as what was previously outlawed. This will prohibit shell companies, and hiring those who commit crimes from working for NSA-subcontractors and other hidden entities with a merry-go-round approach to staffing and corporate leadership.
[Page 9 of 18: Line 35] Compensation
Congress needs to define the method of compensation to be something of value. The current US dollar is imploding. What if there’s a crash in the dollar; will the US Congress use Euros, gold, or what about golden nuggets with shiny little smiley faces of Dennis Hastert, “Oh, Holy One – Master of The Universe”? How about gold-plated pretzels? Will Laura Bush get to have a say on whether Condi does or does not get to share the guest room with the Oval Office Buffoon?
[10 of 18: Line 2] 180 day period
The President and Gonzalez was required to provide notice, under title 50, information related to illegal activity. They were also required to do things within x-days. Those requirements and deadlines were not followed.
Why should we believe that the information contained in the 180-review/report will be any better than the worthless drive this DoJ Staff has been providing to the public?
[10 of 18: Lines 6-12] Report description
The 180 report includes the “shall” requirements. “Shall” is a requirement. Yet despite “shall” in FISA, all we’ve heard is non-sense as to why certain things could not be followed.
Despite a “shall” requirement to get warrants, DoJ Staffers have not been doing that; rather, they’ve been surfing the internet. That doesn’t show that the DOJ Staffers who are licensed attorneys with the DC bar (or should be, Wendy J. Keifer, cough cough) who have been doing something else. Why should we believe that this “shall” requirement will be taken more seriously?
Again the real solution is to stick with the Existing FISA, enforce that, and trash this DOJ Staff Attorney list, and find a new crew who isn’t so stupid when it comes to reading the laws: They are to be followed, not explained away. Presidential pardons do not immunize you from war crimes liability.
[Page 10 of 18: Lines 13-16] This is meaningless drivel.
Despite clear powers to gather information, this lazy Congress has failed to do what it has the power to do: Gather information. It is meaningless to assert that Congressional committees do or do not have any authority or responsibility when they refuse to assert what power they have, nor take responsibility for the failure to asset that responsibility 5 USC 3331.
Even if we have a new FISA, nothing in lines 13-16 should be taken by any voter as any serious intention by Congress to assert this power, gather factions, or that they are serious about doing their “respective function.” These Members of Congress are lazy, refuse to ask tough questions, and when given recklessly outrageous information, they show no inclination to hold the clerk in the Oval Office to Account.
[10 of 18: Line 21] Executive Authority
Authority attaches with it responsibility. IN cases where the President refuses to assent to the law or express Will of the People, with this New Constitution he shall have his power diluted, and the Courts shall have the power to recognized diluted power as something that the public can take advantage of.
When the Executive abuses power, the Courts shall transfer that abused power to the plaintiff to lawfully reciprocate against the Executive, and inflict nasty harm. This is the only way to send a clear signal: Don’t be stupid and abuse power, even if Addington rubs his beard across your belly. His beard may hurt, but the court can hurt you more.
[Page 10 of 18: Line 23-25] Constitutional Authority
The Executive does not have the authority to do anything which violates the Constitution. The precedent of Lincoln is clear: Violations of the law and Constitution are violations, regardless what Addington may or may not say in 1987 in the Iran-Contra Report, or in 2006.
Addington may not invoke the absurd notion of the Iran-Contra Minority Report, nor assert that the President has unique powers. Rather, the President has shared powers, and has no power to declare or wage war unless the Legislature Declares War. This is not in dispute.
It is not lawful for the Executive to invoke “national security” or the excuse of “targeting agents of foreign powers” before those foreign powers were in existence. Bluntly, there’s no basis to assert, as was done before Sept 2001, that there was or was not a problem, but fail to account for the illegal activity.
The President has no absolute power to do whatever he wants, nor can he violate Geneva, and he does not have the power to violate any law of war to gather information. The President with tie FISA changes does not get the license to engage in illegal conduct, violate the rights of innocents, nor can he unilaterally abrogate a treaty, nor redefine Geneva to suit his objectives.
Nothing in the Constitution permits the Executive to expand his power beyond what has been expressly delegated; nor create a ruse of "foreign threat" to target Americans with unrestricted domestic intelligence gathering tools; nor define is power as being unlimited by Statute. Rather, there are limits to what methods the President may use to gather information, and get intelligence when those methods require the destruction of the Constitution, or violation of the laws of war which prohibit abuse and injustice committed against civilians..
The Senate cannot confer onto the President the power to engage in kidnapping, extortion, or other immoral acts that amount to barbaric treatment of human beings. Again, if someone is a spy there is no absolute power to immediately deny them of their human rights; they may ultimately be executed, but this FISA does not confer on the President any global power to self-define new powers, or otherwise create new exceptions that expand powers that have not been delegated.
Nor should liens 23-25 be construed as a green light for the Executive to claim he has new powers under the Constitution; or that he has broadened authority to define anyone, however disconnected, as being an agent of a foreign power.
Rather, the problem with FISA and the NSA violations is that the Executive has raised dubious claims of a connection to a foreign power as a means to engage in violations of FISA, and not use the very technical capabilities that would ensure the lawful FISAS warrants were secured.
The President has no power to crate ruses, provides excuses, or manufacture non-sense that will “justify” a violation of the laws or Geneva, merely on the pretext that someone is connected to a foreign power; while at the same time the aim of that designation is to expand inquiry, conduct warrantless surveillance or circumvent the laws.
The President dos not have the power to say that because he is or is not limited that he has discretion over whether to follow the laws of war, or lawfully seek funds from Congress to ensure that money is only lawfully spent.
The President has now power to expand power beyond Article II; nor can he usurp Article I nr Article III powers to put into effect this legislation; nor may he assert nor violate the rights of anyone in a manner that violates Geneva simply on the ruse, promise, aim, or desire to get information. Rather, the claim that there is no limit on him in whether he does or does not have the power to collect information should be narrowly applied in terms of the Broad, overreaching, and requirement of Geneva, which Hamdan affirmed: You may not violate the rights of others; then use the abuses as the pretext to expand abuses against others. This conduct merely inspires American civilians to conclude the Executive is a greater threat to the Constitution than any individual discussing their knitting.
[ page 10 of 18, lines 26-27] Impacts of repealing
Discuss why we should remove (50 U.S.C. 1811, 1829, and 1844). Use English.
[10 of 18: Lines 32, and 36]: Constitutional authority, permitted
These are sweeping comments. “Constitutional authority” is a buzz words of Addington. Addington’s idea of the Constitution is to assert the powers of all three branches – on a conclusory basis – without regard to the limits on that power.
The Excusive has no exclusive power to enforce treaties; this is a shared responsibility he has with Congress. Using Addington’s theory, “Constitutional authority” could mean the self-delegated power to redefine the Constitution, which is a usurpation of Article III powers.
Again, Hamdan states there are limits to the President’s power, and whether FISA does or does not control that misconduct is meaningless. The President does not have infinite power to conduct raids whenever, and whenever he chooses based on a whim, or a desire to find out more. Rather, as we have seen with Iraq, when the Executive engages in this abuse, this simply inspires the local population to lawfully retaliation.
The point is simple? If the Executive chooses to assert non-delegated powers, abuse his authority, and go after Americans because they “might” in the future do something, then this lawfully subjects to the Executive to lawful pre-emptive oversight: A presumption that he might in the future engage in similarly speculative, dubious, uncertain, but potentially grave things.
It is called pre-emptive government oversight. If you want to make excuses to abuse power, we can make excuses to pre-emptively keep you in a box. We outnumber you.
[10 of 18: Line 32-33] FISA
What is most comical is that despite violating FISA 2000-2006, this Senate Bill wants to introduce . . . (wait for it) FISA.
This is absurd. The Senate has already stated it wont’ enforce FISA; there’s no reason to take seriously the effort to introduce FISA as a reference in line 32-33 of page 10 through 18. It has every prospect of being ignored.
Again, this Bill is merely taking words, plugging them into where it sounds nice, but doing little to ensure the already reckless DoJ staff is subject to meaningful sanctions. There’s no need to debate a bill that simply crates an illusion of oversight, but does the opposite: Crates a fertile ground for mischief.
[11 of 18: Line 5, 9]: Constitution
Addington is not to be trusted. He’s inserting “Constitution” here without any intention to ensure that it is followed, respected, or complied. Rather, he’s introducing this words do that he, or Gonzalez as his proxy, can self-assert that something is or is not Constitutional; then assert that the conduct fits within this twisted definition of what is or is not in the Constitution. This is a violation of Federalist 10, amounting to a self-adjudication of lawfulness.
Gonzalez assertions of legality have proven worthless. Addington and Gonzalez, as they have both demonstrated by failing to graduate from their respective service academies, is that they do not know the laws well rather, they know how to craft the law and Constitution in their own image. They are not to be trusted, and you should expect them to devise a mechanism which will do exactly the opposite of what the plain reading of the statute says.
Again, FISA as it currently stands is getting ignored; making new language that changes FISA cannot be expected to be an improvement, but a means to further permit violations of the law, especially where Congress is not serious about investigating what is known, but creating new methods to hide what should be prohibited, and never permitted to occur.
[11 of 19: line 13-14]: ‘Knowingly discloses or uses”
This should be a liability that only attaches to the NSA and government officials. Once information related to illegal government activity is disclosed, the opposite should apply: That the information should be disclosed without fear of sanction; and that the NSA-related information, however collected, should not be restricted in its open discussion and use when its purposes it to identify, hunt down, track, monitor, and lawfully target by civilian oversight boards or others seeking to thwart abuses of Executive power using any lawful means.
[11 of 18: Line 14] “not authorized by law”
This phrase has been abused, and the “Constitutional authority” doctrine is a self-assertion of legality; while the real objective is to crate the illusion of compliance. The aim of this FISA bill is to create the impression that abuse of power is permitted if given the right label; or that the misconduct, however crafted and shaped must be accepted.
“Not authorized by law” is vague, and should be changed to “illegal activity”. Hamdan shows us the AUMF does not permit illegal activity; yet the FISA-related certifications made related to the AUMF have not been also struck down, nor subject to investigation.
Even if there was a use or disclosure of this information, it isn’t likely Congress is going to take this seriously. “Not authorized by law” is the very term this DoJ Staff, Addington, and Gonzalez used to abuse power.
[ Page 11 of 18: Line 26-27] “Expected to receive”
What is the basis to assert the “expectation” is probable cause, reasonableness, or some dubious assertion standard of, “We’re not sure, so we’ll use our ignorance as a basis to say that we expect something.”
Most DOJ Staffers do not expect to get caught, that’s why they update wikis during official duty hours. This conduct, going forward, is “expected” not speculative; yet the same standard is not actually in play: TO avoid prospective consequences, there is nothing that permits prior restraint. At issue here is whether speculative expectation is something that is a credible basis to target someone; or have the DoJ Staffer’s head examined for imagining things that are far to unreasonable.
[11 of 18: Line 26] “expected to . . receive”
This is absurd: t could amount to a possible reception of a radio broadcast, fully protected, from overseas for purposes of doing analysis on an incoming radio signal, content for educational purposes and study.
It is not appropriate that foreign intelligence, when it is received, is something that is dangerous; rather, the information can be cultural information, status on publicly available events; or other information that is as benign as the weather.
Congress has no power to prohibit people from receiving information that is related to other sectors of the world as it relates to trade, travel, or military status. This provision is too broad. The key isn’t the receipt of the information; but whether that information is actually being used to develop and implement an actual activity which seeks to violently overthrow the US.
When people receive information, to make informed voting decisions, or complement the information that is otherwise corrupted from the White House, then this “reception of foreign intelligence” information is merely a pretext to target those who rely on non-US sources as a means to stay fully informed.
[11 of 18, lines 30 – 33] Missing Text.
There is a problem with this statement. You’re not being clear. “Who is reasonable believe to be in the United States” – that’s anyone:
“(1) the installation or use of an electronic, mechanical, or other surveillance 30
device for the intentional collection of information concerning a particular known 31
person who is reasonably believed to be in the United States
You need to qualify that statement with something to the effect: “. . believed to be in the United Sates for purposes of . . . [enter qualifications“
Also the problem with the standard of review is “reasonably expected” which is at odds with the probable cause standard.
[11 of 18: Line 29] Enforcement of this definition: “Electronic surveillance”
The problem with promulgating this definition is that it creates the false impression that the that something is changing, and that there will be better enforcement. This is false.
The current FISA has a clear definition of what electronic surveillance means; this was violated; and this national leadership refuses to enforce it.
Moreover, despite having IG and trained investigators who can seize evidence, we’ve had nothing. It’s unacceptable and a sham. Not only does this put the NSA program mangers in a crimp, but it sends a clear signal: If you try to enforce the law, the employees at firms like Lockheed Martin, Ford, AT&T, and the other NSA contractors are going to go behind your back, figure out a way to violate the law, but then play stupid.
The real solution is for the Congress to show up with the IG Special Agents, guns in hand and say, “This is the law, follow it, if you fail, we’ll be back to take you to jail.” The current system is a sham, and fails to give the Program Mangers in the NSA any real backing or support. Plus, this gag order non-sense is totally absurd. This idiot in the White House is violating the law; and we’ve got nothing to stand on: NO credible threat of jail time, or lawful consequences on the contractor; and a stilly side show going on at NSA at the Senior SES level. This didn’t appear out of nowhere, but we’ve got the people doing this stuff getting promoted. What a bad signal this sends to the young engineers.
[12 of 18: Line 5-6] AG Designation
The current method of designating targets has been abused. This Senate Bill doesn’t address the AG veracity problem. If there was “no problem” with the assigned targets, AG Gonzalez can provide no information as to why he’s blocking DoJ OPR from reviewing something.
Bluntly, DoJ OPR is/was hoping to do exactly what this statute will authorize: Engage in reviews. Yes, Despite DoJ OPR having the authority to do this, AG has crated no roadblocks.
Congress has failed to reconcile the problems with DOJ OPR reviews. There’s no reason to believe that AG will fully comply and ensure open access by DoJ OPR to these matters. It is not lawful nor appropriate for AG Gonzalez to, despite claims of being concerned, creates barriers t DoJ OPR from reviewing the matters.
[12 of 18: Lines 1-4] “Reasonable expectation of privacy and a warrant”
This doesn’t mean that the surveillance is prohibited; nor that the warrant will be secured. It merely means that this is what is included.
However, as stated before, simply because something that is prohibited, or included in a definition has no meaning or bearing on whether that definition, rule, provision, requirement, or distinction is investigated, reviewed, prosecuted, or enforced.
It’s one thing to broaden the definition of what is not lawful; quite another matter to actually enforce the misconduct. Again, this Congress is a sham: It’s simply making a new class of conduct that has already been violated something that is not enforced; and does nothing to address the lack of oversight problem as is currently the case with the existing failed oversight system.
Making new rules and definitions does nothing to address this problem.
[12 of 18: Line 6] “Acting Attorney General”
This clause is problematic. During periods of transition, or times when the AG is not around, the acting Attorney General may have different views.
What will Congress do when it is discovered that the AG and Acting AG have an agreement to selectively not inform each other of decisions: How will the failure to document the Asst AG’s decision factor into the consequences imposed on the AG for a leadership problem; and a violation against the Asst AG; and then subsequent oversight by Congress.
Again, even if there is an approval, review, authorization, or someone else involved, this does little to address the current problem with this White House staff, DoJ, and RNC leadership: Despite clear requirements in FISA to follow the law, they don’t do it. Making new rules, adding semi colons, and adjusting text doesn’t solve the enforcement, investigation, oversight problem. Moreover, it doesn’t address the issue that Contractors have known about this abuse, and done nothing t report the misconduct.
[12 of 18: Lines 12-14] “not include a device that extracts or analyzes’
This is problematic in that the way to circumvent FISA is to create intercept devises that combines the “extraction” and “analysis function”, thereby crating an exception.
[[12 of 18: line 14]: “by lawful means”
This phrase is meaningless: Unlawful means have been used under current FISA, but there’s no sanction. Someone, who violates FISA, is just as likely to simply self-assert that the activity is “lawful”, even though they knew it’s a ruse-NSA training mission.
Bottom line: The information this DoJ-NSA crew has collected has been used to target and render Americans in violation of Geneva. Hamdan is a wakeup call: This activity is a war crime, and war criminals have nothing to gain by comply wing the truthful reporting requirements; the war criminals in DoJ and NSA are going to keep lying.
[12 of 18: Line 20] “location of corporation”
It is absurd to argue that a corporation, doing business in the US, but incorporated overseas (or vice versa) is the subject/non-target/non-subject based on this dubious classification.
[12 of 18: Line 16-17] Person
This definition includes “foreign power” with protected classes; also, treaty obligations with various countries do not recognize a “foreign power” as being a person. This assertion is interesting, but does not appear to be enforceable; nor is there any credible track record the US is going to take action against a “person” that is actually a foreign power.
[12 of 18: lines 25- 29]
Common carries should have the duty despite promises of immunity, to report to Congress government conduct that violates the warrant requirement.
The time limits related to authorization without court order have been abused. This Senate bill does not address these abuses.
Mandatory reports to Congress have proven meaningless. Even if complete, this Congress fails to act on those repots. This bill does nothing to address the leadership problem in Congress, and it track record of stating around waiting for something to happen. They are not leadership, but complicity in war crimes.
d
[12 of 18: Line 30] “not withstanding any other law”
This is an unacceptable loophole which permits far too much discretion. When Congress is given non-sense information, and decided to make a finding, this Executive could assert that that is a “law” to permit targeting those Congress says, “We do not like,” thereby circumventing the 1st Amendment.
We need to hear some better discussion on what they envision could be implemented using this “any other law” provision. Beware.
[12 of 18: Line 32-33] One [1] year authorization
This time limit is a meaningless change. Despite a clear requirement to report within a finite time, this President failed to comply with those deadlines. This Bill does not address that enforcement problem.
[12 of 18: Line 38] “technical intelligence”
OK, so NSA admits that it’s not going to simply look for information related to potential terrorist attacks, but any technical information.
But this conflicts with the notion that American citizens, when they attend conferences, are going to get put under surveillance. Do Americans realize that once they attend a technical conference, under this Senate Bill, they are subject to monitoring, and thereby (unreasonably) lose an expectation of privacy. Conversely, those who understand this, and ruse to cooperate could then be targeted as “suspicious” then similarly targeted.
This is the loophole that is going to permit monitoring of anyone. The US is a fascist state.
[13 of 18: Line 6] 30 days prior
What excuses are we going to hear to ignore this requirement? Again, current requirements are not getting enforced; there’s no reason to believe that this 30 day reporting requirement is going to get meaningful action. The solution is to enforce the Existing FISA, not pretend oversight (that does not exist) will awake. Oversight is dead; long live oversight.
[13 of 18: line 10] AG Certification.
AG certifications are meaningless; even if violated this Congress refuses to enforce the law. This Senate Bill is a sham.
[13 of 18; Line 7] AG determination
What the AG determines is subject to a twisting of the law, and no competent Congressional challenge. Addington And Gonzalez have determined that torture is OK, but Congress does nothing. This Senate Bill is a sham.
[13 of 18, line 9-10] Conducted only in accordance with the AG’s cortication
This is meaningless: The FISA is the current standard, but is ignored; there’s’ no reason to believe that other requirements, certifications, or assertions are going to have any meaning, much less get followed.
The solution is to ensure the FISA court has a credible stick to kick the AG when he fails to provide truthful statements; or blocks investigations of illegal activity.
[13 of 18: Line 12-13] Reporting requirement to Senate/House Intel Committees
What a farce. Even if they do report, there’s nothing to say that the assessments, even if true, are going to be complete, accurate, or face any meaningful oversight. This Bill is a sham.
[13 of 18: Line 11]: Shall assess compliance
This is meaningless. AG should have no role on assessments. This is a judicial function. Get the AG out of this “assessment” process – his assessments are worthless. We need independent courts making this assessment and kick the AG in the rear end.
[13 of 18: Lines 23- 32] This paragraph makes no sense, and needs to be rewritten. Shorter sentences.
Certificates are meaningless: The President cannot self-assert that something is lawful, nor does this paragraph discuss what is to be done when that certification is false or bogus.
[13 of 18: lines 33-43] AG needs to be stripped of this discretion, and required to coordinate this communication with Congress and the Court. When a letter or approval is granted, there needs to be provided to Congress a notification that something has been permitted; then a summary of these changes, and a chance for the Congress to use these notifications letters as a basis to expand inquiry. Again, whether Congress does this is another matter.
[14 of 18: Line 6] Compensation
As a check on what is going on, Congress needs to have a full printout of the compensations provided, and Congress can use this information to compare the outlays, expenditures, and see if there is a non-notification problem, or failure to provide Congress and the Court with needed information.
[14 of 18: Line 18-28] Certifications
US government official certifications are worthless.
Keep in mind Viet D. Dinh is leading an effort to have these Sarbanes-Oxley like certifications thrown out.
Is it DoJ-Senate position that just as NSA certifying requirements are rising, that the Senate will assent to lower certifications under Sarbox? If so, then as Sarbox is diluted, will the diluted Sarbox reporting then be used to say that the NSA certifications are not needed? Beware.
[14 of 18: Lines 26-27; 30-31] Cannot be obtained by normal investigative techniques
This is highly dubious language. “reasonably” implies some arbitrary assertion by an investigator that they have a “reasonable” basis (not probable cause) to assert something that may be a mere wish or desire; but be wholly disconnected from actual evidence. Conversely, once the investigation is started, it remains speculative that the law enforce “cannot do something.” They are lazy and are not willing to do simple things: It’s likely that the DoJ Attorneys will assent to a rather low threshold of the lazy law enforcement to say, “Wow, we really tried, but this is difficult.” This assertion, even if made, cannot be credibly believed; in turn, that this requirement will be the basis to reject requests is the basis that DoJ AG will say, “We didn’t think you’d approve this, so we lied, and did it anyway.” Again, back to the same mess we have with the 6 Aug 2006 hearing: NO credible consequences for ignoring FISA> What are we going to have in 2007, “OH, let’s have a new bill.” Fortunately, we have a November 2006 election, and there’s a real chance that this non-sense is going to slightly turn to the better: Real oversight.
[page 14 of 18: Line 32] double semicolon: is there a reason for the second semi-colon or is this a typo?
[ “(7) A statement whether physical entry is required to effect the surveillance;;]
[14 of 18: line 33] Change “period of time” to “duration, including start and stop dates]
Need a mandatory trigger in the software that will do a better job than what we currently have with the “conflicts” software the courts use.
[14 of 18: line 34:] chance comma to a semi-colon after “be maintained,“ and strike “and” after “maintained”
[14 of 18: Line 37] “belief” – this is a problem. Earlier you’ve included “facts”, but now you’re got belief. Why the change? Are we working under a world of ‘belief” or “probable cause” or “suspicion”. Belief in God doesn’t mean that God is the subject of surveillance, or does it?
[15 of 18: lines 1-18] Targets
You’ve incorrectly narrowed the targeting to physical spaces. However, the problem with current NSA-FISA violations (as we’ve been led to believe) is that non-physical objects and targets are a problem: People using cell phones not connected to a specific number; descrambler, frequency jumpers; and the like.
This section needs to better discuss how the “uncertainty of a number” will or will not be overseen, managed, and reviewed. Conversely, if there is a “vague notion” of what the target is doing, located, r what frequency they are on, then the Court needs to have better information on how the target will be located with specific frequency searches, and how the massive data sweeps will be filtered appropriately so as to not engage in a General Warrant approach to collecting information.
Again, nothing in this draft of the Senate bill addresses the problem of what did or didn’t’ happen prior to Sept 2001, before the pretext being used to engage in illegal NSA surveillance.
[15 of 18: Line 20 -- 1 year
Again, the problem with time limits is that the current FISA requirements have been ignored. If there is an order longer than 1 year, who is going to enforce that?
Also, if there is an actual program that is getting new names, or having the “real target” (which is a small section) of the ruse-activity getting targeted, this amounts to a transfer of targets between “programs” without the oversight needed.
What will be done to ensure that this “program skipping” or “program sliding” will be managed, and not something that is creatively used to circumvent the court oversight.
[15 of 18: Line 30-32] Due diligence
This is a circular argument. This implies that if something cannot be reviewed (namely, something that we do not want the court find out about), that we can say that there’s no time, and classify it as an emergency. This is not acceptable.
If you can’t do due diligence, what is the basis to assert that there is or is not an emergency?
[15 of 18, line 33]: Then, you contradict yourself when you say on line 33 that there is a “factual basis” to conclude something.
How can you have [a] no time to do due diligence; but [b] time to review facts, This is merely a made-up definition for “emergency” but has not been through through. Redo this definition, and resubmit.
[15 of 18
[16 of 18: line 4, As soon as practicable] – This is not a credible timeline. AG Gonzalez idea of “as soon as practicable” is never. Need something that implies urgency. NSA and JCS have through Intel Link the capability to transmit messages within minutes.
Recommend you put a specific time limit on this notification to be measured within one hour. Yes, that means hooking the court up to the JCS communication lines and Intel Link. Start thinking for yourselves. And I expect there to be something in writing so that the courts may file this in their files and assess whether they are or are not getting timely notifications by JCS/AG on the emergency situations, and impose sanctions or eject FBI agents from the well for arrogantly lying.
Hold on: [16 of 18, line 10: “information sought is obtained”] this implies that there is a specific target or information in mind.
Yet, recall the premise from 15 of 18 [Lines 30 – 34 ] that there was an emergency situation without he ability to due diligence; and yet there were still facts to make a conclusion.
This is not consistent. You’re asking us to believe that there is an emergency and “not time” to do analysis of the events; but we still have time to know when the information is or isn’t sought. This implies that there’s specificity involved, and that due diligence has already been done in order to assess that the information is or is not sufficient.
The above is not reconcilable. Need a better discussion n what you’re trying to do with this specificity. It appears as though you’re trying to argue that an emergency relates to confusion; but that emergency need not be reported n a timely manner once the specific information is sought. Well, then you don’t’ have an emergency, you have a time-related issue involving a discrete event. That may not be an emergency, but more of an “opportunity.”
You can go jump in a lake yourself. How’s that membership at the Potomac Golf Association in July 2001? Nice message traffic, Intel Link, and WTC explosive placement. Nobody will figure it out.
[16 of 18, line 14] “no information obtained or evidence derived from such surveillance “
This is a meaningless provision. The current NSA-DoJ legacy is that information is retained in overseas locations. The current provisions and technical capabilities of the NSA defy believe that the information, however it was obtained, will be destroyed.
That the information is or is not used is meaningless. The issue is that there’s been a violation of the Constitution; the only defense is that the misconduct was not known; and this fuels the desire to hide the misconduct, not ensure the court is adequately involved. Same problem we have with Addington’s desire to suppress information illegally obtained; again, same problem, and no solution. Problem is leadership and meaningless Congressional efforts to kick Addington in the rear end when he most needs it. Tell him to get a shave and buy new glasses. He looks fat. Why doesn’t he walk to work instead of sitting on the Metro? He needs more exercise. Why doesn’t he play soccer with his daughters? He might fit in with them.
[ [16 of 18, line 25, and 27-30 ] “Any” and “that does not constitute electronic surveillance”
This is not a good sign. You’ve effectively said that any “technical assistance” (whatever that means, could be illegal) has a special designation. Addington’s approach to these designations has been to take special liberties. This section tends to create too much discretion. Need to follow-up on this and get some precise langue which blocks what they appear to be doing: Creating a catchall to permit anything.
[16 of 18, line 36] need something that better defines “significant” this could be 1%, and available from open sources, and a ruse to go on a fishing trip, or in the case of Cheney, a hunting trip with is friends.
[17 of 18, lines 1-9]: Great, this many years after IBM created punch cards to organize the movement of Holocaust victims, the US decides to electronically manage data. Welcome to the 21st Century. What took so long?
[17 of 18: Lines 17-26] Criminal sanctions
This is meaningless: FISA as it currently stands has consequences, but there has been no action.
[[17 of 18k lin3 21, 24] “authorized . . .by the Constitution” – this is meaningless: How can “electronic surveillance” (that requires a secret court review) be “permitted under the Constitution” when the very premise of FISA is to violate the 4th Amendment? This makes no sense.
How does Addington hope to use the line 21, and 24 on page 17] as a means to expand executive power?
How will the Article II powers be expanded to say that “anything that the Executive imagines” is Constructional?
What will be done to prevent this abuse of Article II powers?
[17 of 18] Line 25: war time – Line 30 This is the same as a home burglary and Watergate stuff.
[18 of 18, line 1, 4] “as authorized . . .under the Constitution.”
Get real. The Constitution only prohibits with the Amendments what can or cannot be done This can only mean that Addington wants Article II powers to be broadly defined, and permit “anything”.
Who is deciding whether something is or is not Constitutional?
[18 of 18, line 19] Change “Executive Authority” or “Limited Article II Power”
[18 of 18, lines 11 through 19] : Why are these titles appropriate? Provide a change page, and a justification for each change in language. Discuss at length the Constitutional implications. Why should we believe that these are bonafide reasons?
posted by Constant @ 4:58 PM
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