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Tuesday, July 18, 2006

NSA: Congress Proposes Unlawful Solution


Action Alert: This is a request for your timely and focused response on this issue. There is something you can do. The information below outlines the problem for you in a simple way, and shows you what you can do. This is very easy to do.

Please consider the full information before taking action.

Short Version: Let your friends know about these precedents.

* * *

Problem: Senator Specter is proposing a bill that is Unconstitutional.

Background: The President blocked DoJ from reviewing the illegal NSA activity. [ DoJ OPR blocked from reviewing DoJ employee conduct related to the illegal NSA activity; If there was nothing wrong, there would be no reason to obstruct an investigation; rather, the RNC should welcome a review that would clear everyone of wrong doing. Refs: Click A B C D E F G H I J] The only credible leverage, [oversight over/investigation of] the illegal NSA-DoJ activity, is civil litigation; however, Specter's bill would eliminate this last lawful means to gather facts.

Senator Feingold writes:
the President is willing to submit the NSA program to the FISA court only if the Congress passes a law making the program legal, thus predetermining the outcome of the highly touted judicial review of the President’s authority to violate FISA [Letter; Via Bulldog at ImpeachBush]

Solution: Civil litigation and discovery must reveal the NSA illegal activity. The civil attorneys, litigating against the NSA's illegal conduct, need to hear from you: There is specific case law they can cite that will show the court that the proposed Specter legislation is contrary to public policy and unconstitutional. [Caselaw]

* * *


Congress has no Constitutional power to block pending litigation against the NSA. It is not lawful for a specific Congressional bill to target matters of pending litigation. This is clearly established in precedent.

For Congress to take this action would amount to assertion of Article III powers. In so many words, when Congress proposes legislation that hopes to affect the outcome of a specific case, this amounts to Congress influencing the court decisions. This is an abuse of power and not lawful.

What you can do

Contact the following attorneys listed at the EFF and ACLU website, and anyone else you know at the state legal in your Attorney General's office.

Be polite, show them the link of the EFF information, and provide a brief commentary on the information. At no time should you expect a response back from anyone; rather, because this is pending litigation, you may never hear anything from the court.

The goals are simple:

A. Inform the people are involved in the ongoing litigation that there is case law that has already adjudicated on this matter, making it illegal for the Congress to do what it is doing;

B. Communicate to the public, your friends, open media, and others in your State Congressional delegation that what they are proposing to do interferes with Article III powers; and

C. Let the legal community, Congress, and your local government know: This Congress is illegally attempting to pass legislation that hopes to target a specific bill; and it is not appropriate for Congress or Members of the RNC to say that the NSA legal issues are over.

What you Can Specifically Do

1. Contact NSA Litigation Teams [E-mails Click]

Contact the parties to the litigation who have standing and an interest in seeing this litigation continue. Review the letter below, review the links to the law firms, and share your thoughts with them on what case law they may wish to consider prohibiting Congress from obstructing their private litigation.

2. Visit the NSA Civil Litigation Blogs

Visit this blog and leave your comments with one of the attorneys involved in the litigation against NSA. Also leave your comments in this blog, the law firm leading the class action lawsuit against Verizon over the NSA billing issues. They need to know your concern, and the case law which prohibits Congress from doing what they are doing: Blocking their specific litigation with a specific Congressional bill.

3. Review and Share Public Information About the Specter Bill Deceptions

Look at the links in this letter; Text [How to send quick Letters to your local editors Feingold Letter; Ref]

4. Share Questions With the House Judiciary Committee

Despite a Constitutional separation of powers, and precedents barring Congress from passing legislation targeting specific litigation, it remains to be understood who in the White House is proposing this illegal legislation. The President and Gonzalez were involved in obstructing DoJ OPR from reviewing the NSA matters; they have no power to thwart lawful inquiry into illegal activity. This obstruction and interference with fact finding is no different than we saw during Watergate. Ref ] Here are some questions the House Judiciary may wish to review related to the President's and DoJ AG block of the DoJ OPR in reviewing the NSA illegal activity: [ Ref ] [Reconsider: Questions from Nov 2004]

5. Support Civil Liberties Oversight Boards

Use this form to voice your support. Ref

6. Remind Your friends: There Are Options

Regardless what the President does to thwart DoJ investigations, or convince Congress to pass unconstitutional bills, We the People can assert the rule of law, and make adverse judgments: This President continues to abuse power, and his RNC party is enabling him. The RNC cannot be trusted to assert their 5 USC 3331 oath of office obligations and must be lawfully denied power in Congress this election, November 2006.

7. Reminders to Elected Officials About Their Oath of Office

Remind your elected officials that they are lawfully bound by oath to the Constitution. It is their job to ensure it is protected from domestic enemies in Congress. [ Article IV: "shall be bound by oath or affirmation, to support this Constitution": Ref ]

8. Contact Your State Attorney General

The State Attorney Generals are pursuing other options at the state level to gather facts related to the NSA illegal activity. They need to know your ideas to ensure the civil litigation continues, and understand your views on what Congress isn't doing. Your State officials need to know your concerns that the national government is not protecting your state's guaranteed right to a constitutional form of government. [Contacting your state officials and AG Ref ]

9. State Level Proclamations Calling for Investigations

Consider contacting your state legislators to pass a state proclamation calling for the matters to be reviewed. There is a House rule 603 which Illinois, California, Vermont, and other states have used to draft proclamations calling for the President's conduct to be investigated. [Status of the 603 effort: Ref ]

Thank you for your attention and support.

* * *

[Return to Summary Action List Above]

Here are the details: E-mails, contact information, and backup links

Here are the civil litigators affected by Senator Specter's Bill. They need to hear your support and your views on this matter.

  • CCR: Center for Constitutional Rights Ref Blog

  • EFF link, with contact information at bottom: Ref

    Kevin Bankston
    Staff Attorney
    Electronic Frontier Foundation
    Email: bankston AT eff DOT org

    Kurt Opsahl
    Staff Attorney
    Electronic Frontier Foundation
    E-mail: kurt AT eff DOT org

    Lee Tien
    Senior Staff Attorney
    Electronic Frontier Foundation
    E-mail: tien AT eff DOT org

  • ACLU link Ref Contact

    - -

    Here are the details on the unconstitutional Specter Bill:

  • Specter's Senate Bill Ref

  • Commentary on the Senate Bill General Detailed

    - -


  • Action: Provide this link, these quotes, and the following [ F. Supp. Citation Numbers ] to your friends:

    It is unlawful for the Congress to pass legislation targeting specific on-going litigation. Here is the [ case law ] which will show attorneys and the court that the Specter Bill is not Constitutional:

    [By] expressly directing legislation at pending litigation, Congress has arguably attempted to determine the outcome of this litigation Ref
    [274 F. Supp. 2d 20, 195 F. Supp. 2d 140]

    [By] legislating no more broadly or narrowly than issues presented by this litigation, Congress has also implicated Article III of the United States ConstitutionRef
    [195 F. Supp. 2d 140, 274 F. Supp. 2d 20]

    [I]f Congress explicitly legislates a rule of decision without amending the underlying substantive law it violates the exclusive province of the judiciaryRef
    [195 F. Supp. 2d 140]

    Also, there is precedent for the court to find that a statute is not lawful in that it is for an improper purpose: Targeting ongoing litigation. ["A court's finding of improper purpose behind a statute is appropriately determined by the statute on its face, its legislative history, or its interpretation by a responsible administrative agency" 482 U.S. 578]

    * * *

    To save you some time, and give you some ideas of what you may wish to share with others, here is a sample latter you may wish to edit and personalize it based on what you want to say. [This is here as a sample, and you are not required to use it.]

    Sample letter:

    Dear _______,

    Thank you for your work on the ongoing litigation over the NSA domestic surveillance activity. My concern has to do with Senator Specter's proposed bill. I am writing not to comment on the technical language or details of the bill itself; rather, my reason for writing is to communicate my broader concern with a Constitutional issue.

    My reason for writing is simple: To let you know that the pubic is aware of this rule and case law; and that others have informed me that there is case law and precedent which strictly prohibits what Congress proposes to do with this NSA-related litigation. The language is explicit and appears to directly bar what Congress hopes to accomplish:

    expressly directing legislation at pending litigation, Congress has arguably attempted to determine the outcome of this litigation Ref [274 F. Supp. 2d 20, 195 F. Supp. 2d 140]

    legislating no more broadly or narrowly than issues presented by this litigation, Congress has also implicated Article III of the United States ConstitutionRef [195 F. Supp. 2d 140, 274 F. Supp. 2d 20]

    if Congress explicitly legislates a rule of decision without amending the underlying substantive law it violates the exclusive province of the judiciaryRef [195 F. Supp. 2d 140]

    The sample cases prohibiting Congress from doing this are clearly established, reported in the open media, and are available through rather rudimentary law search engines. Please pass the information to others in your organization or those involved with the NSA litigation to let them know of this case law, and remind them there are restrictions on Congress from passing legislation; and against the President enforcing legislation which thwarts pending cases.

    Based on the public statements of the various parties involved, it appears as though many people believe that nothing can be done. On the contrary, it is not lawful for Congress to pass legislation targeting specific ongoing litigation. This amounts to a violation of separation of powers, and usurpation by Congress of Article III powers.

    Regardless what Congress hopes to do, the way forward is to explore facts, resolve the legal issues, and ensure that the violations of the law are adequately prosecuted. This legislation illegally hopes to thwart this check on abuse of power.

    Obviously, how you choose to use this information is up to you and your staff. However, I write to let you know that I would hope that you may issue a public statement commenting on the overall Senate Bill in the Context of the prohibitions against Congress passing legislation against specific, ongoing litigation.

    Thank you for your prompt attention to this matter and I look forward to your response and public comments on the illegality of Congressional action to thwart your ongoing litigation related to the unlawful NSA domestic surveillance.



    [Your name]

    * * *

    Shayana Kadidal posting at Jurist

    Jurist: "Shayana Kadidal is a staff attorney at the Center for Constitutional Rights and one of the lead attorneys on the Center’s challenge to the NSA Surveillance Program, Center for Constitutional Rights v. Bush." Ref

    Attempted to post the following comment at this site [Successful, retained, not deleted, screener accepted. Note: Blogger comments at Jurist do not include author name, need to include this in the text at the end.]:

    . . .

    Shayana Kadidal,

    Thank you for your work on the NSA litigation. Putting aside the many flaws within the bill’s provisions, Specter's proposed bill is a separation of powers issue, unconstitutionally infringing on Article III powers. A plain reading of the precedents suggests this is not only unconstitutional, but something that Congress well knows, or should know, is not consistent with Article II. Congress may not use any bill to target ongoing litigation [274 F. Supp. 2d 20, 195 F. Supp. 2d 140].

    Although DoJ Staff attorneys and RNC counsel in Congress cannot lawfully reconcile this fundamental flaw of the Specter Bill with the Constitution, the court opened the door to the possibility the Congress may impact the ongoing litigation, [see Comments in re 42 of 72, at 22-26 of the dismissal opinion]

    Perhaps plaintiff counsel might encourage the court to compel the government defendants to explain this (arguably) illegal bill, whose apparent sole aim is to (unlawfully) target ongoing litigation against the NSA. Please consider using these precedents at this link to encourage the Court to strike down the Specter Bill (if signed into law) as unconstitutional so that discovery into the NSA illegal activity may continue.

    Thank you again for your work on this important Constitutional issue.

    * * *

    Wired: One of the EFF Friends

    Attempted to post the following at Wired: [Ref:

    Note: the URL-HTML formatting at wired is difficult. HTML will not appear. Recommend shortening the urls, then placing them in brackets adjacent to the relevant texts.]

    See Entries, Scroll down:
    - Friday, 21 July 2006 - 12:18 PM PDT
    - Friday, 21 July 2006 - 12:24 PM PDT

    . . .

    Comments for Wired Readers

    The Specter Bill amounts to an unconstitutional Article III assertion of power by Congress. There is precedent for finding that any Congressional bill directed at specific, on-going litigation is not constitutional [195 F. Supp. 2d 140, 274 F. Supp. 2d 20 ] :

    A. "expressly directing legislation at pending litigation, Congress has arguably attempted to determine the outcome of this litigation", and

    B. "legislating no more broadly or narrowly than issues presented by this litigation, Congress has also implicated Article III of the United States Constitution." [ Ref ]

    Judge Vaughn in denying the government motion to dismiss, however, raised the prospect that Congress may do this: "The court also recognizes that legislative or other developments might alter the course of this litigation" [See:36 of 72, Ref: Details ]

    It appears the court may benefit from some information and guidance by counsel on the precedents prohibiting Congress from legislating to affect ongoing litigation, as the Specter Bill would. If you are interested in seeing what others are doing to spread the word to plaintiff counsel about the precedents barring this targeted legislation, consider this [Action alert]

    . . .

    Another Wired comment: Ref (HTML/links not obvious)

    A. Original: Friday, 21 July 2006 - 12:51 PM PDT

    B. Link added: Friday, 21 July 2006 - 12:53 PM PDT

    * * *

    Defense Tech: Ref July 21, 2006 03:14 PM