Constant's pations

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Thursday, July 20, 2006

NSA: Court Refuses to Dismiss, Destroying RNC Governance Credibility

In a major blow to the White House, DoJ, and AT&T, Judge Walker has ruled that there is no merit to the government motion to dismiss.

This is a major development which completely destroys the government's contention that there's nothing to look at, or the situation deserves special protections. Rather, the conclusion is simple: This Republican party cannot be trusted to do what it should do: Assert the rule of law, and adequately investigate and solve problems.

Court: Opinion Backup

* * *
Added 8:19P, 21 Jul 2006 [Ref #24] ConyersBlog:

A. Recalibrating the Congress and Courts: There are things that are not Constitutional

Keep in mind these precedents, and watch how the issue does or does not get covered: Look at the comments at end and also here.

B. Preparing Your Oversight Plan For Public Debate

We may not be able to (yet) set the agenda, but we can discuss our plan for oversight and what we would ask and investigate if we were in charge. Think of this as a "plan to get a plan" -- this is something the public needs to hear and know: "There are people who are thinking, planning, and can provide the leadership to address these issues.

For starters, consider scrolling down on this link, below for the diagrams, figures, and questions: This is how the Grand Jury, Congress, and civil litigation are (in a good way) overlapping in their discovery. Put your thinking caps on and start outlining the questions you want answered.

C. Using Trends To Guide Discovery

Take note of the many "refs" at the end of the section of the Figures/Diagrams. Those will give you a notion of the spectrum of misconduct that is occurring under Addington-Yoo-Gonzalez, and give you a sense for the scope of the discovery that is unfolding.

D. Focus of Inquiry

These are the types of litigation targets; this is the timeframe of the war crimes discovery; and these are the real people who have failed.

E. Historical Guides To Planning Oversight And Conducting Inquiry

When we discuss the range of solutions, in the spirit of Watergate/Iran-Contra-like hearings, keep in mind the recent examples, and the other history.

Consider also the group that swore an oath to support those whose job it was to protec the founding document: They swore a personal oath to these people to ensure that the fundamental document was at all times put first, and compel others to do the same. This priority is non-existent, treated as if an apology. It's there job.

The goal is to devise a system that is responsive, and checks power. Consider the opening statements of the Senate Report from Watergate: They were short statements [couple of paragraphs], focused on fact finding, and moved away from focusing on criminal liability.

F. Catalyst For Asserting Rule of Law.

It's stunning to see the violent agreement within the ABA -- (paraphrasing) there is a problem and nit needs to be fixed. Yet despite clear violations of the Constitution, the current approach focuses on the issues of harm and standing, but does little to turn the situation on its head: And compel the players to assent to the Constitution.

Recall the comments of Judge Walker in the decision. (See kw=[ With respect to "standing," the issue is not the government's conduct ] Ref) The ABA approach fails to look at the larger issue: How do we trigger a timely action through a more credible mechanism other than focusing on the potential that someone may or may not have been harmed.

The Constitution has been harmed as a document. Despite this abuse of power, Congress-Courts-Executive plays the three-monkey game [hear, speak, see no evil], and not addressing the core issue: The defense of the Constitution. To look at the "government" as a single entity that will not assent to the Constitution amounts to a defacto assertion that we have three branches of tyranny refuses to agree that they are responsible to ensure the Constitution is protected, as opposed to the (apparent) current mode of seeking excuses to do nothing, all the while it continues to smolder. Keep the matches away!

Within the law and civility, the Constitution must be first; the current "approach" to the law puts it last, permitting Congress to "not support" something that should be done: Action to compel action, as opposed to the (apparent) infinite search for someone who has "standing." It's absurd that abuse of power can occur, there are clear Presidential statements not to follow-enforce the law, yet We the People have to "wait around" for damages to occur. No! Analogy: We should be able to keep this dog on a leash, not require the neighbors' children to get harmed, then "think about" doing something. This is absurd.

The Constitution is there as a boundary; when it is violated, we need to get it out of the minds of the Members of Congress that this isn't simply a matter of power. The RNC's likely (irrelevant) defense is that by Congress brining suit the Judiciary will then be in a position as a "superior branch" to all three, and unconstitutionally acting as a referee.

The real problem is that we have no leadership to point the way: Gather facts, present it to a grand jury, and brining criminal charges against the Members of Congress, DoJ Staff attorneys, and others who have assented to these illegal violations of their 5 USC 3331 oath of office obligations.

The proper approach is to remind the Congress and Executive that We the People may lawfully join forces with the Judicial Branch, expand discovery into war crimes and violations of the laws, and compel and assent to the rule of law. The problem the ABA approach has is that it assents to the absurd notion that "Congress has to agree to permit it to bring suit, then they'll be able to make the President do what he already promised to do." This is not an issue of standing in a civil case, but an issue of criminal law and gathering evidence: Malfeasance, and an express intent to not comply with the law. The issue should not be a matter of "standing" (whereby Congress acts as another party against the Executive), but a matter of criminal law (whereby a prosecutor, Grand Jury, and We the People, and the State with FBI assistance) gather evidence and conduct a criminal inquiry.

End Addition

* * *

Contrary to the Congress' excuse for inaction, here's the problem:
[P]laintiffs are making a factual allegation that AT&T did not receive a certification.54 of 72, at 18-19
More problematic in that AT&T has done this without any lawful requirement. Not only did AT&T, DoJ Staff attorneys, and the White House know, or should have known, the law but they did so without any reasonable expectation of immunity, defense, or waiver for liabilities.
AT&T appears to have confirmed that it did not have any legal obligation to assist the government implement any surveillance program.58 of 78, at 25-27
The scale of credibility tilts away from AT&T. This shows us AT&T and the Government were willing partners in something that they knew or should have known was not lawful, raising real questions about the mental and legal competency of the AT&T General Counsel, their private counsel, and the DOJ Staff attorneys, for purposes of disbarment for willful engagement in illegal activity. It a violation of their attorney professional standards for DoJ Attorneys and the AT&T private counsel to:
(b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects;

(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;

The problem isn't just with the primary actors in DoJ and AT&T. Other attorneys who observing this expanding, deepening litigation know there is a problem with untruthful statements:
(a) A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority.Ref

The longer this abuse of power, professional misconduct, and other violations of the law continue, the more people who are going to be indicted for war crimes. The investigations lasted many years in Germany, well into the 1990s. Over 100,000 Germans have been indicted for war crimes. [Ref]

Pretending your legal profession peers aren't doing something wrong does not inspire public confidence in the legal profession, especially when you have freely taken an oath to uphold your professional standards. Rather, it inspires the world to have that much greater disdain for the promised benefits of democracy and the so-called "rule of law." Not only have Members of Congress, the RNC, and the legal profession incited the very contempt and violence they want us to believe they're fighting, but they're actively engaging in illegal and unconstitutional conduct to thwart accountability for their initial war crimes.

* * *

This will give you an idea of the problem the White House and DoJ Staff attorneys have:

  • See figures: Figs One [1] through Eight [8]

  • Recall these Six diagrams

    Here are the issues, related to these figures and diagrams, which in light of this opinion creates quite a mess for the government:

    A. All the points in each of the six [6] diagrams, asserted to be "wild speculations by Constant," have been proven to be valid, and consistent with the President's refusal of DoJ OPR to review the matters;

    B. Nothing in the current opinion is inconsistent with the adverse inferences at the points in each of the six [6] diagrams;

    C. Congress is in a position to know, or should know, that the conduct is illegal, but they refuse to investigate as they have a duty to do so;

    D. There are ample phone company memoranda which will show that the government official statements to Congress [Gonzalez, Hayden, Haynes] amount to perjury;

    E. The questions and issues at this link are reasonable lines of inquiry, but this Congress despite knowing of this information refuses to gather facts;

    F. DoJ responses at this link amount to false statements to Congress, and Members of Congress know, or should know this, but refuse to bring contempt charges;

    G. Adverse inferences at this link are reasonable; and

    H. All DoJ responses to Congress in each of the questions, in light of this opinion and Hamdan, amount to dubious statements and evidence of out of court inconsistent statements, further supporting the contention that there has been fraud and corruption, but this Congress refuses to review these matters.

    Sample questions for discovery: Ref Ref Ref Ref Ref Ref Ref Ref Ref Ref

    Trend Analysis, Pattern Recognition: NSA programs Range of Abuses Loopholes in Intelligence Language

    * * *

    Relying on this precedent, it's likely that the state-level action against AT&T will be similarly permitted to proceed. [ Oregon Hawaii New Jersey ]

    Also, this throws a monkey wrench into the DoJ effort to consolidate-dismiss the cases. DoJ cannot explain how the cases will be consolidated when there are [1] different issues; [2] different jurisdictions; and [3] the court finds that discovery should continue; [4] there is no merit to any argument that the litigation should be dismissed for any reason; and [5] the DoJ Staff attorneys appear to have engaged in professional misconduct and fraud upon the court.

    * * *

    This courts opinion means, inter alia: By refusing to dismiss, the Court finds there is a chance this allegation could be proven true.

    This is a key phrase, that should send a chill through DoJ:
    Hence, it is at least conceivable that some of plaintiffs’ claims, particularly with respect to declaratory and injunctive relief, could survive summary judgment.44 of 72, at 2-4
    This is a major problem for the government: We already know the President has admitted to illegal conduct; and that the allegations can be proven without any access to classified information. Discovery will simply be the needed doorway to into DoJ to find out inter alia:

  • What conversations there were prior to Sept 2001 to engage in the illegal conduct;

  • The nature of the discussion between the telephone companies and the DoJ Staff attorneys prior to Sept 2001;

  • The real timing of event and information that triggered various NSA surveillance;

  • Why, despite the known conversations and surveillance, did the government not turn over all the available information to the 9-11 Commission;

  • How the legal arguments asserted/signed/delivered to Congress were at odds with [a] statute; and [b] what the attorneys knew to be clear requirements, Hamdan;

  • How DHS warrantless interrogations are unconstitutionally relying on JTTF procedures and Intel-Link illegal procedures that are known to be unconstitutional, as the court found with the National Security Letters [NSLs];

  • To what extent (a) the JROC information inside DoD (JAG concerns with illegal options which were rejected, but then the President ignored the JAGs, as with Hamdan ) is inconsistent with (b) the public statements given in sworn testimony to Congress, raising the prospect of additional perjury investigations against DoJ AG Gonzalez and DoD General Counsel Haynes.

    * * *

    Going deeper, the more important issue is, despite the evidence which the Court recognizes could find AT&T and the government in violation of the Constitution, Congress refuses to consider or examine the matters before the voters have to make a material decision at the November election. This inaction amounts to Congressional malfeasance, and raises 5 USC 3331 issues; this conclusion is entirely consistent with the Hamdi and Hamdan Supreme Court precedents, which remind us that requirements are to be followed, not ignored or explained away. These are duties and obligations, not discretionary items to be cast to the whims of chance and imprudence.

    DoJ Staff Attorneys, DoJ OPR, and the White House counsel should have known that there was no certification as required, but have continued to assert that the program is “lawful”. More troubling, despite this unconstitutional conduct which DoJ has otherwise asserted is “constitutional,” are the provisions in the Specter Bill which would (unconstitutionally) permit DoJ to self-certify the legality.

    Consider the inconsistency. The court has permitted discovery –- over the factual allegation that there were no bonafide certifications, as required; yet DoJ’s asserts that the program is legal. The two are not reconcilable. Rather, we cannot trust the Congress or DoJ to self-review this matter. The proper forum is for judicial review. A Grand Jury should be empanelled to review the apparent facts related to Gonzalez’ perjury before Congress and other emerging evidence of illegal conduct. Again, the Congress refuses to act.

    This Congress no longer has legitimacy. Rather, it simply exists as a sham puppet to a war criminal in the White House. This is a sham democracy, and we should not be surprised why forces around the world are emboldened to take up arms and actively engage US combat forces: The Americans refuse to assent to the rule of law. The only forum Americans (apparently) respect, is the battlefield. Americans are outnumbered. The way forward is to assert Sovereignty, demand facts be discovered, and ensure the rule of law prevails. Anything else will merely inspire combat forces around the globe to continue mobilizing not just against American military personnel, but American civilians, at home, on your streets, and in your places of worship. Your Congress has given the world community no other choice.

    But you, as a voter, have a choice.

    * * *

    Around the globe, the world knows that Congress talks about principles it does not respect. Your Supreme Court has affirmed a separation of power and role for Congress.

    Indeed, the problem does not rest simply with DoJ, the White House and NSA. This is a clear violation of the Constitution, and should trigger Congressional action. The court reminds us of Hamdii[Emphasis added]:
    Whatever power the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake.36 of 72, at 10-14
    Yet, Congress fails to investigate what the court has found to be the bonafide, non-dubious, alleged facts: AT&T did not have the required certifications, despite claims by DoJ and the President that the Conduct was legal. This Congress openly celebrates inaction on matters of the Constitution. Arguably, your inattentive RNC-Member of Congress should be indicted for 5 USC 3331 violations, failing to assert their oath to investigate, and prevent illegal conduct.

    The Supreme Court in Hamdi affirmed that Congress has a clear role, responsibility, and duty to protect individual liberties. This legislative role is not something solely related to statutes, but is affirmed when there treaty obligations are involved, as are the Geneva Conventions. The implication of the NSA litigation is simple: Specter's proposed bill is not only unconstitutional, but shows us that Members of Congress have recklessly failed to comply with the expressly delegated Constitutional powers, duties and responsibilities to assert the rule of law. They have jointly agreed with the peers in Congress to rebel against the Constitution.

    * * *

    See #20: Yes, Citizen J, something can, and should be done be done.

    In light of these precedents, this should be of great concern:
    The court also recognizes that legislative or other developments might alter the course of this litigation.36 of 72

    Further, the court also indicates that there could be room for Congress to do something that may affect the ongoing litigation. This is of concern:
    Finally, the court notes plaintiffs contend that Congress, through various statutes, has limited the state secrets privilege in the context of electronic surveillance and has abrogated the privilege regarding the existence of a government certification.42 of 72, at 22-26

    The Attorneys involved in the litigation and the Court needs to be reminded of the precedents. Please consider this action alert and let your friends know there is a potential problem: Congress unlawfully interfering with ongoing litigation, and the Court despite precedent to the contrary, appearing to assent to that unconstitutional legislation.

    * * *

    With respect to "standing," the issue is not the government's conduct, but AT&Ts.
    As long as the named plaintiffs were, as they allege, AT&T customers during the relevant time period (FAC, ¶¶ 13-16), the alleged dragnet would have imparted a concrete injury on each of them. 48 of 72, at 21-24. . . this dragnet necessarily inflicts a concrete injury that affects each customer in a distinct way, 49 of 72, 21-22

    Again, the court finds that Congress did stipulate that there is liability, raising questions as to why Congress, despite the apparent violation, refuses to review the matter they have said is a requirement, which Hamdan affirms must be respected, not explained away:
    Similarly, Congress specifically contemplated that communications carriers could be liable for violations of Title III.67 of 72, at 1-3
    How many other violations of the law does Congress require before it will dare to ask a question and review the matters? They've been there since 2000, doing nothing to assert the rule of law, merely assenting to abuse and engaging in reckless malfeasance.

    * * *

    Further, the court finds that there is a basis to expand discovery and gather facts, something the Congress refuses to do:
    AT&T’s alleged actions here violate the constitutional rights clearly established68 of 72, at 14-15 . . .AT&T cannot seriously contend that a reasonable entity in its position could have believed that the alleged domestic dragnet was legal 68 of 72, at 16-18

    The entities involved, as the Court finds, are not making credible statements or assertions. These out of court, dubious, and unreliable statements should be something that this Congress dares to review, yet they refuse to act.

    The issue is despite the dubious claims, this Congress refuses to investigate the fundamental issues to which they took an oath to protect: Our Constitution. Clearly, because they know the law, and they refuse to take action, this Congress engages in reckless malfeasance, which is another cause of action for the Grand Jury to review.

    * * *

    This presents a major problem for Congress: Despite this apparent injury to the American public -- which the court recognizes is a possibility -- this RNC controlled Congress before the election has no plan to gather any facts related to an apparent illegal conspiracy by the President and many others to violate the Constitution. If only they were as "concerned" with facts as then Vice President Cheney was in 1987 over the Iran-Contra affair.

    This Congress, despite passing clear laws, is not willing to enforce them, investigate the issues, and much less ensure that the Constitution is preserved. This Congress remains a threat to the American Constitution and they deserve to be swiftly, lawfully targeted for purposes of indictment for 5 USC 3331 violations.

    * * *

    As you review the opinion, consider the questions Vaughn asked. We now know the case has not been dismissed; this means that the questions related to the non-dismissal are relevant.

    * * *

    Free speech and hype can come back to haunt you, especially when it is shown that your statements were false, materially misleading, and were relied upon. In turn, when others choose to distance themselves from you because of your misconduct or apparent unreliability, you only have yourself to blame.

    Opening the Barn Door:
    In short, the government has opened the door for judicial inquiry by publicly confirming and denying material information about its monitoring of communication content.40 of 72, at 3-6

    Once someone comments publicly on a capability, but that assertion is found to be false, the issue cannot turn on whether the public's rights are or are not violated; but whether the conduct is legal or illegal. Any claim that there are or are not members of the public "with standing" is irrelevant once we move into a criminal investigation and discovery phase.

    * * *

    Let's consider the broader issues. The Court has essentially ruled that the case can proceed to trial. All government assertions that "state secrets" should prevail have been struck down as meaningless. This validates the contention that Adam J. White's comments, of AT&T-related Baker Botts, are essentially worthless drivel and should not be relied upon.

    This court opinion, by refusing to dismiss the case against AT&T, is a fatal blow to the Government on issues related to Hamdan, war crimes, and other unlawful conduct which could soon see the disbarment and indictment of individual DoJ Staff attorneys.

    * * *

    The White House-AT&T problem is that they are unable to guarantee that their attorneys will not jump ship. Keep in mind that given the war crimes implications on Hamdan, and the GCHQ known capability to intercept data, it's only a matter of time before the Geneva violations translate into war crimes indictments against the DoJ Staff.

    Make no mistake, DoJ and others as we saw in Watergate, are willing to twist the laws, and intimidate others to be silent. They have a problem: Information collected through GCHQ is not something the NSA can control; rather, this information could be given to the EU investigating war crimes, rendition, and human rights violations.

    At the heart of the AT&T litigation is the use of illegally intercepted data to detain Americans, and unlawfully interrogate and kidnap them to other locations. The White House has, in the wake of Hamdan when it called for a change in CIA procedures, essentially confirmed the existence of the CIA detention centers.

    * * *

    The issues are simple: If you are going to lie about your capabilities, or mislead the public about whether you are or are not doing something, the world will find out. It is one thing to assert that you are "honest." Quite another for the world to find out that you actually engage in the conduct you (incorrectly) accuse others of doing. You have only one person to blame for the mess you find yourself: You.

    Nobody told you to mislead the public about what you did; nor did anyone force you to make materially misleading statements about your capabilities. Yet, as the facts surface, we find there are more inconsistencies, things do not add up. This is not a credibility issue. It is an issue of fraud, crimes, and conduct which is wholly at odds with what the public is being asked to embrace.

    Your problem is that you believe the public will not find out, or that the public can continue to believe your non-sense. You are wrong. The worst thing you can do is to believe your hype. But a "bad enemy" will let you believe your non-sense. Congratulations, you have taken the bait, and believe "nobody will find out." They've long known. What's most amazing is that despite your claims of "this is what we're fighting for," you still have no specifics. You claim to have certain capabilities, but when we look at what you are doing, you fail to put that capability into practice.

    We can only reasonably conclude that your touted capabilities do not exist; and that the basis for your public standing is dubious, at best. Rather, it’s far more likely that others have realized long ago the core integrity problems, and this is their reason for no longer working with you.

    You cannot explain the loss of support. Nor can you point to something that would warrant public confidence. Rather, you rely on "assertions of honesty," despite conduct which materially undermines your claims. Your problem is that you believe the world will not find out.

    You have more than taken the bait. You are stuck. And the criminal investigators have long known. They merely wait for you to crumble, so that you take others with you. You have proven yourself to be a stooge. That is why your name is no longer mentioned. You command disrespect merely because of your arrogance. Truly, if there were no merit to what one might say, why do you get so worried about the whiff of air from a single blog? The answer: You know that you are transparent, and that the basis for your public standing is, at best, dubious, fleeting, and tenuous.

    * * *

    Gonzalez has also fatally admitted-asserted that the DoJ-WH arguments related to "we're at war" are also dubious excuses to assert state secrets. In testimony before the Senate Judiciary, Gonzalez stated that the restrictions of FISA related to war did not apply as the US was not at war.

    In other words, every time to White House-DoJ opens its mouth related to the NSA issues, Rendition, or war crimes, it runs into another problem. There is one profession you can look at: The legal profession and its failure to ensure that the DoJ Staff attorneys asserted the rule of law.

    The failure of the ABA to ensure that this President's power was abused, and that the legal profession timely protected the Constitution needs to be a high priority in the Congressional oversight. This ABA has failed, and its attorneys openly mock each other, raising substantial doubts in the mind of the public as to the ability of the ABA to effectively oversee itself.

    * * *

    Judge Walker's ruling on the NSA is about one thing: A finding by the court that the AT&T defenses are dubious, and that all government assertions of "Stat secrets" are dubious. This is an important opinion for the State Attorney Generals. Not only is the existence of the AT&T-NSA activity known and publicly provable without reviewing classified information, but the public will soon have the opportunity to timely review the evidence to make an informed decision about who is most capable of leading Congressional oversight.

    This Congress refuses to conduct reviews, and proposes unlawful legislation to thwart ongoing litigation. This Congress cannot be trusted to protect the Constitution, assert its oath, or do what they have promised. There is one group that is responsible for this reckless disregard for the laws of the land: The RNC, my party.

    My party remains a threat to your livelihood, personal safety, and future. Tell your fiends: The court has found that the RNC's claims are dubious, and that they have failed to make a credible case that they are innocent. Rather, the court in refusing to dismiss has stated the opposite: That in all likelihood the public and plaintiffs are likely to prevail.

    Your government is lying to you. And my party is leading an effort to illegally use information to commit other abuses around the globe. Unless you vote to put the DNC in power in Congress, my party will commit more war crimes to avoid accountability. They do not plan to stop. This President has already shut down a DoJ OPR investigation into the misconduct in DoJ and the NSA. If he was doing the right thing, he would not be afraid of facts.

    Then-Representative Cheney in 1987 called for Iran-Contra investigations. Why is the Vice President inconsistent with his previous calls for fact finding? We can only conclude, making adverse judgments, that if we knew the truth, he would be held accountable. Judge Walker moved one step closer toward getting the evidence before the public. The next step is to ensure the violations of the law are put before a Grand Jury for purposes of criminal indictments over violations of the Geneva Conventions: Using illegally gathered information to “justify” illegally kidnapping American civilians, in violation of the laws of war, for purposes of illegal interrogations, torture, and other abuse.

    This President, DoJ Staff Attorneys, and the NSA have unlawfully supported illegal war crimes. Unless Americans use the courts to assert the law, other nations and entities may lawfully, under the laws of war, take military action to lawfully transport Americans to The Hague for war crimes trials. The EU continues to investigate, and this Court Ruling against AT&T is another justification for the EU and UN to continue to regard the United States as a state sponsor of terrorism, abuse, and illegal violations of international law.

    We still don’t have the facts on Iraq. This RNC refuses to find facts on matters of domestic law. There’s no reason we should believe them when they point, as always, to convenient distractions abroad. Rather, this nation can both wage illegal war, and at the same time conduct trials to find facts. It is not either-or.

    The issue is simply the Constitution. Nothing more. To maintain your power and prestige you have shown you are willing to lie, deceive others, and then compel the world to assent to your non-sense.

    You are not a leader. You are a stooge. Congratulations on believing your own delusion.