NSA: Executive-Legislature Unconstitutionally Asserts Illusory 'Permission Power'

The Constitution gives the Judicial Branch the exclusive power to review legal issues. Neither the President nor the Legislature have any say on whether the judicial branch does or does not review a matter.

This is another unconstitutional assertion of non-delegated powers.

195 F. Supp. 2d 140 shows us that Congress cannt specifically target pending litigation with legislative changes. [ Ref; see more discussion ]

Short answer: Which seized contraband are you fools in DoJ and Congress smoking?

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This should send chills up your spine:

Specter said President Bush has agreed to sign legislation that would authorize the secretive Foreign Intelligence Surveillance Court to review the constitutionality of the National Security Agency's most high-profile monitoring operations"Ref

Key points:

FISA has the power to review this without any Congressional or Executive Action;

Whether the Congress and Executive agree or disagree on this issue is irrelevant;

FISA courts can review the legality of any issue they choose; not withstanding anything the Executive or Legislature does or does not do.

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FISA already includes jurisdiction for the courts, violations which the Congress has failed to investigate.

As a sample of jurisdiction, look at para 3.

What's absurd with the proposed "consent to permit Court review" is that the Court has been effectively denied, with this proposal, from doing just that: Engage in judicial review.

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Marbury v. Madison, 5 U.S. (1 Cranch) 137 recognized the Constitution: [ Ref ]

In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

This means:

The Supreme Court has the power to review anything;

Congress cannot grant power, only make exceptions.

As applied to the proposed FISA changes, the Congress and Executive are turning the issue of jurisdiction upside down, (apparently) asserting that they can define when, if at all, any court reviews the matter.

In order to grant an "exception", that means Congress is adjusting the power of the court to review. In the FISA issue, Congress and the Executive are doing the opposite: Asserting there is no role, and selectively constraining the court as to whether it will ever have any judicial role.

Carefully consider jurisdication when dealing with issues of the Constitution and International law:

The Congress and President may not grant or deny the Courts Constitutional review -- this is a power they always have;

Congress has no power to grant or deny jurisdiction related to international legal matters, when through a treaty, the US has already agreed to comply with the treaty obligation. For example, Hamdan affirms that Geneva is a requirement; Congress has no role in deciding whether or not the court may or may not review violations of the requirements -- to do so would be to engage, through a legislative act, a final judicial decision. Congress can't make a rule which violates a treaty; neither do the Legislature-Executive have the separate nor joint power to eject the judicial branch from the Constitutional framework.

A specific court may or may not lack jurisdiction on a given matter; but this does not, and cannot broadly mean that no court has no jurisdiction to engage in judicial review, as the Congress and President have (apparently) agreed.

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Let's consider the opposite (illogical) argument: That until the Congress and Executive agree to permit the court to review the matter, there is no review.

This is absurd. Again, whether the court does or does not get the power to review is different from whether a specific court has or does not have jurisdiction. Courts, as a creature of the Constitution have judicial power to review; courts as a mechanism to review a specific legal matter may or may not have jurisdiction.

The point is that if the Congress and Executive were "not to agree" to "permit" the FISA court to review this matter, does that mean that the FISA court would "have no role or power" to do so? Of course not.

Broadly, there is a requirement to follow the Constitution. If we were to assent to the Legislative-Executive (absurd, illegal) construction of jurisdiction, we would find ourselves in the same situation as Hamdan, Hamdi, and Padilla: Forever waiting for "something magical to happen" before the country agrees, "Yes, we're going to review that; or no, we're not going to review that." This is not something the legislature and executive have any power to decide.

If judicial matters, and whether they were or were not reviewed, were left up to the Executive-Legislative review, then if Congress and the Executive (unconstitutionally) stated that this was not a reviewable matter, we would have the following (absurd, unconstitutional) results:

Denial of speedy trials; and

This would ask us to believe that the judicial power -- the power to review whether requirements are or are not being followed -- is contingent upon whether or not the other two branches agree or not agree to be subject to the law. They have no choice!

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The Constitution does not grant the Congress or Executive any power to "give permission" to do something to the Judicial Branch: This violates separation of powers; and amounts to a phony "delegation" of permission from two branches to a third.

Nor does the Constitution prescribe anything in Article I or Article II which grants them any power to say that their agreement, even if it precedes the judicial review, amounts to any cognizable assertion of, grant of, or delegation of power.

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If they are willing to permit the FISA court review the Constitutionality of the program, why the opposition to the NSA litigation?

Answer: They're forum shopping, which is not legal. Further, they hope to have the FISA litigation and appeal sealed, contrary to Hamdan which said the evidence must be public. Also, their goal on the civil litigation is to delay the court opinion by consolidating the civil cases into a single case, thereby ensuring the results are not known until after the election.

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The proposed changes to FISA are not Constitutional.

(1) Unconstitutional Exclusion of Judiciary

Problem: "option of submitting the program to the intelligence court".

It removes the Judicial branch from the oversight, which is contrary to our separation of powers, and unlawfully affirms what is not acceptable -- Executive self-reviews, in violation of Federalist 10.

This is not going to work: Cannot retroactively change the existing requirement to comply with FISA.

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(2) Unconstitutional Violation of Separation of Powers

Problem: "preserves the right of future presidents to skip the court review"

This is not lawful, and violates the Constitution which delegates the Judicial power to the third branch, and it is not something either the Legislature or Executive may prohibit the Judicial branch from doing.

There is no “right” of the Executive to decide or not decide whether his actions or policies are or are not going to be reviewed by the third branch. The Constitution does not delegate the Executive any “rights,” only powers.

There is no Constitutional basis for the Executive and Legislative branches to say that a matter can or cannot bypass the courts. This decision has already been expressly stated in the Constitution which recognizes the eternal power of the judicial branch to exist, have a say, and intervene wherever there is a judicial matter to be adjudicated.

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(3) Unconstitutional Self-Adjudication of Constitutionality

Problem: Assertion, without showing to court, that the power is or is not constitutional.

Dana Perino is full of non-sense in saying the changes, "recognizes the president's constitutional authority": President has no authority to engage in illegal activity, regardless whether he chooses to ignore or follow a modified-FISA.

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(4) Unconstitutional Executive Assertion of Exclusive Judicial Powers

Problem: "give the attorney general power to consolidate the 100 lawsuits filed against the surveillance operations into one case before the Foreign Intelligence Surveillance Court"

This is not constitutional. The Executive has no judicial powers; making a decision whether civil cases should or should not be consolidated is a judicial function, and has no place in the DoJ.

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Technical Details

With this change ["Expand the time for emergency warrants secured under the Foreign Intelligence Surveillance Act from three to seven days"], the Executive has a problem: Can't explain why, this many years later, they refused to comply. If "seven days" is "good enough" their previous arguments (lack of manpower) are meaningless. On this point alone, Gonzalez should be indicted for perjury.

This notion ["Require the attorney general to give the intelligence court information on the program's constitutionality"] amounts to excluding the judicial branch from the process, and unconstitutionally affirming what is not lawful: Permitting the executive to self-adjudicate that something is or is not lawful. Not only does the Executive not have the Constitutional power to do this; but the repeated assertions of "legality" have been meaningless, requiring an independent (judicial) review. Thus, taking the courts out of the review process (as discussed earlier) would amount to a violation of Federalist 10, banning self-adjudication.

This approach ["Create a new offense if government officials misuse information"] is not clear -- will substitute for another offense; and how will this be enforced? Bolton's "use" of transcript information wasn't investigated.

How does NSA plan to achieve this objective ["calls that merely pass through terminals in the United States are not subject to the judicial process established under the Foreign Intelligence Surveillance Act"]: What method does NSA plan to use to permit US calls to go this route, thereby defeating the purpose of FISA; and what is the basis for this change, given NARUS design, why was this not requested after 1993 CELEA when the intercept capability and STA concept was imagined?

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Unwinding The Spin

White House: ["Bush will submit to the court review as long the bill is not changed"], you've already ignored the statute, why should we trust you comply with the change? Game over, you're not trustworthy.

Specter: ["That is the president's commitment."] -- Ha! He already took an oath, and has violated that, no reason to believe his "commitment".

George-Specter-Orwell: ["You have here a recognition by the president that he does not have a blank check"] -- Ha, this is a blank check for mischief.

Deluded Specter: Congress isn't being consistent -- first saying there was no crime, but now granting a waiver for what they said wasn't a problem. There's no need to grant a waiver for something that hasn't been violated [ Ref ]

Summation

Read the Constitution.

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Questions for discussion:

1. Which specific case law and Constitutional authority are the executive and legislature relying on deny or grant the courts the power to review this specific legal issue;

2. Putting aside the Constitution and notions of absurdity: If the executive-legislature did "not grant" this authority (through this proposed change), are they saying there exists (currently) "no forum" to review the constitutional matters?

3. Putting aside the issue of whether this proposed change does or does not get legs, where do the Congress and President stand on the issues of "which court will or will not review the Constitutionality of the NSA's illegal activity"?

4. DoJ's letter to Schumer is instructive of the "thinking" inside the Executive Branch. Hamdan affirms the general rule that requirements must be followed. There is an eternal requirement to comply with the Constitution. If there is "no forum" to review this matter, how does the Executive reconcile [a] DoJ's letter to Schumer (which absurdly asserts Hamdan does not apply to FISA); with [b] the reality of Hamdan, which says that (constitutional, statutory, treaty) requirements must be followed? [More discussion: Ref ]

5. Let's consider the DoJ letter to Schumer from another angle. Putting aside the finality of the Supreme Courts decision in re Hamdan, there are (absurdly) divergent views on whether Hamdan does or does not apply to FISA. Given the divergent views between the Legislature and Executive on which Supreme Court rule does or does not govern FISA, discuss the process and discussions between the Executive and Legislative branches on this "agreement":

- If it is an (absurd) debatable point as to whether or not the Hamdan precedent does or does not apply (raising the "question" as to whether requirements are or are enforceable), what was the thinking in Congress and the DoJ Legislative Liaison

- How was it "agreed" that some particular issue relating to the Constitution was or was not reviewable by the judicial branch?

- How does this "agreement" build off the lessons of Hamdan: That (constitutional) requirements are to be followed?

- If Hamdan does not apply, and requirements are discretionary, please discuss how this moves us forward, and sends a signal: We are a nation of laws, our people follow procedures, and we are willing to comply with requirements?

Review

Rather than assent to mere Executive tyranny in denying rights and abusing power, the nation is being asked to assent to a joint Executive-Congressional tyranny: Unconstitutional Change to the Constitution which effectively denies the Judicial Branch of their Constitutionally protected powers. They’ve effectively (illegally) abrogated the Constitution.

The more you dig into the Congressional-Executive "thinking" behind this plan, and the closer you look at the DoJ letter to Schumer (over the moot/irrelevant/phony argument of applicability/non-applicability of Hamdan) the more you'll realize: The line of "logic" behind this plan has no credible foundation.

Americans are being told, as was Hamdan: Put up with our non-sense, and you have no recourse. This national leadership, despite Hamdan, is telling Americans: “You have to wait, and we may never review this matter. You never get a chance to have an independent adjudicator in the court review what may be illegal conduct and contrary to specific, clearly promulgated legal requirements in the Constitution.”

This leadership has no legitimate claim on power. Their defy their oath 5 USC 3331; are in violation of the Constitution. Anyone who assents to this non-sense is violating the Constitution, and should be investigated for being a domestic threat to the Constitution.

This plan and argument fails. This leadership deserves to be openly mocked for their open defiance of the Constitutional principles of separation of power. It appears reasonable to examine whether they have the mental competency to remain in a position of leadership. This says nothing of the apparent reckless disregard shown by ABA "peer reviewed" attorneys. You show contempt for your oath, your Constitution, and the ultimate client: The American people which rely on this Constitution.

Anyone on the DoJ or Congressional Staffs who orchestrated this plan should be forced to assent to a performance review, line of duty determination, and mandatory drug testing. It's time to see the files from the DoJ OPR and find out what other complaints have been filed against the DoJ Staff attorneys. This isn’t an acceptable solution. It’s contrary to our Constitution.

If, as you absurdly assert, no court (unless you agree) has any jurisdiction to review matters of the Constitution and unlawful conduct, then you have no power to deny We the People from concluding you are a threat to the US Constitution, and should lawfully be subject to lawful pre-emptive government oversight.

Reconsider whether you are with or against your 5 USC 3331 obligations, then resubmit your plan to assent to ongoing, broader, and deeper public scrutiny of your illegal conduct.

If your plan proves wanting, We the People are fully prepared to compel you with a New Constitution to assent to far more egregious insults to your tenuous grasp on delegated power. We can make appropriate adjustments to what is or is not delegated. You could be denied the power or right to make any such absurd proposal, merely afforded a response no more sophisticated than a goat might give to a blade of grass.