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Friday, July 28, 2006

NSA: Illinois Court Permits Revisions

Ref Ref

The Register summarizes [Emphasis added]:
The court gave the plaintiffs until August 1 to amend their pleadings to include claims along the lines of the California suit. The court also examined classified documents and wrote a separate, also-classified memorandum expressing doubts over a few of the government’s claims about the program (which obviously must exist in some form since there were classified documents to examine – a fact which the judge might be trying to hint to everyone, since he mentions this classified memorandum throughout his opinion even though it has no bearing on the decision).


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Snap Shot

This court conclusion is damaging to the DoJ Staff and Members of Congress: Congress is “equally responsible to ensure that the law is followed.” [Opinion, Page 39]

The court language satisfies one key 5 USC 3331 element: the specificity of a mandatory ministerial duty or requirement on those who take the oath of office. This language is authority to indict individual DOJ Staff Attorneys and Members of Congress for 5 USC 3331 violations.


Review the 5 USC 3331 Draft Grand Indictments in light of [a] page 39 of the Court Opinion, and [b] the following Judgments.


We judge the following:

(1) Widespread 5 USC 3331 violations across Legislative and Executive Branches

  • A. This Congress is not acting not as a separate branch of government, but as an Executive Agency, assenting to Presidential directives. The Member of Congress remain loyal to the President, not the rule of law or their 5 USC 3331 oath of office;

  • B. Members of Congress are in receipt of other information related to illegal activity [See page 30 and 39 of the court opinion];

  • C. Members of Congress know the President has violated the law, but are failing in their 5 USC 3331 obligation to enforce the law [See court opinion page 39];

  • D. Members of Congress are in receipt of information that they know or should know is evidence of the President’s [a] violation of the law; and [b] non-compliance with Title 50 requirements to report in writing illegal NSA conduct to Congress;

    (2) Dubious Claims of Privilege to Illegal Suppress Evidence of Illegal Activity

  • E. The Executive has claimed incorrectly, that (as he did with the Energy Commissions), that he can consult with anyone without accountability; there is a phony joint “Congressional-Executive privilege” to avoid public discussion of multi-agency violations of the law and an alleged Executive-Legislative Branch conspiracy to avoid enforcing the law;

  • F. The Executive has claimed executive privilege on information he has disclosed to Congress. This revelation defeats any credible claim of privilege. Rather, as the court notes on page 39, Congress then has an obligation to ensure the law is enforced. The Congress is not fulfilling its 5 USC 3331 obligations;

    (3) Widespread Violations of ORCON and FOIA: Dubious Classification of Illegal Activity

  • G. This documented illegal activity exists, and should be available through FOIA and cannot be classified [See ORCON rules]; and

  • H. DoJ adjusted FOIA disclosure-compliance standards to deny public knowledge before the November 2006 Federal Election of the joint Congressional-Executive awareness of illegal activity and failure to enforce the law.

    * * *


    This case is about the AT&T billing information given to the government. The question is whether the President’s statements related to illegal activity (over not getting required warrants) are or are not relevant to the billing information.

    The court leaves the impression that specific Members of Congress have been told of the data transfer from AT&T to the government; and they have failed to ensure that the law was followed.

    5 USC 3331

    The Courts contents [page 39] that enforcing the law is a requirement of Congress, opening the door to bring indictments against Members of Congress for 5 USC 3331 violations. The questions for individual Members of Congress in re 5 USC 3331:

  • Are you aware of illegal data transfers between any contractor and the US government?

  • What reason do you have for not enforcing the law?

  • Why should we conclude you are fit to remain in office?

  • Why should we believe that you are asserting your 5 USC 3331 obligation to protect the Constitution?

  • Why are you asking us to believe that the Executive branch has privilege on a matter it has openly or in private disclosed to another branch of government?

    * * *

    Commentary On Court Opinion

    Page 2: "the plaintiffs in this case seek (thus far, at least)" [Hint how to amend complaint to survive appeal]

    Page 3, 40: Court denied AT&T motion to dismiss, showing us that the underlying cause of action by plaintiffs could survive if the complaint is modified.

    Page 7: House committee report related to enforceable rights to protect improper disclosure (Echoes of the State AG-level litigation in Missouri and NJ).

    page 8-9: Particularized claims and damages appropriately plead, meaning: The plaintiffs have stated things reasonably to form a matter which the court can review; this survives summary judgment or dismissal. A good thing for the public; a problem for AT&T.

    Page 11: Court skeptical of government broad reading of state secrets privilege.

    Page 13: Despite reading the classified material from the government, the court is not clear whether the government’s case law are or are not similar. This raises the question: What additional information should the court have reviewed to conclude definitively whether the government's cited cases were or were not relevant? We can only wonder what is on the classified tape.

    page 14: Court accepts it’s a legitimate question whether the Executive in 2000-2006 could contract to violate the law, unlike the civil war cases: "an agreement that would require circumventing the laws of the United States." This is a stunning assertion that the conduct, in the court's view the conduct -- an agreement between AT&T to violate the law -- could be illegal; and is not defended by the precedents the government cited.

    Page 15: Court finds that there are situations where discussing the subject of a matter is not a state secret, yet still disclose whether there were or were not violations of clearly established rights.

    Page 15 Note 4, at bottom: There is a mention of a hypothetical whereby governments may wish to target non-terrorists; then the government absurdly arguing it doesn't want the non-terrorists to discovery surveillance. This sounds like a veiled reference to potential NSA political spying for non-terror-related monitoring. [Ref: Bolton access to non-national security related NSA intercepts of American citizens. See also the NSA “training Missions” used as pre-text to circumvent FISA. Also note Sy Hersh’s comments on how the NSA was confirming numbers: Listening into contents to screen out targets, then submitting information to the FISA court to get permission to do what they were already doing: Engaging in illegal surveillance.]

    The real issue is how the illegally obtained phone numbers, once transferred to the government, and are subsequently matched with other information. Again the issue isn’t that the government is or isn’t doing this; the point is that there is no legal foundation to support this activity given there are no warrants, as required.

    * * *

    Remember as you read these notes and the court opinion, the Court has read classified memoranda, but cannot comment on the memoranda; however, they can raise questions about the problems using non-direct methods.

    Put yourself in the position of the court: You may know something that is illegal, but cannot comment on it. How do you comply with your judicial cannons, maintain secrecy, and at the same time ensure the Constitution is protected, while at the same time act as a neutral adjudicator?

    If you think along those lines, you may be in a position to read between the lines on the opinion.

    * * *

    Page 16: Note the court after having reviewed the classified information is distinguishing between Tene and Totten: This means that there is something about this NSA activity that doesn't quite match both cases, and would causing a problem for the government and AT&T should the plaintiffs amend their complaint. Although this court dismissed the claims against the government, the information obtained through discovery could be used in a subsequent complaint against the government in a different matter.

    In other words, the historical illegal activity hasn't changed; the issue is how the plaintiffs are arguing their case relative to what the court can or cannot permit; and the elements and subtleties within the two cases.

    It appears the court is signaling that Tenet opens the doorway, that the plaintiffs, if they read closely with imagination, might use to amend their complaint.

    Page 16: Need to put yourself in the position not Congress and the Court: they have information, their notes cannot be shared, and they have limited technical abilities. The question is what did the government likely do to distract attention from the FISA violations, and assert that illegal activity was technically something else, so as to distract the court from whether there was or was not public information proving the conduct was illegal.

    In other words, it doesn't matter whether the NSA technical details are classified; the issue is whether the government was able to provide sufficiently complicated technical details to induce the court to not realize that non-classified information could review the general, non-classified issues: Whether there had or had not been a violation of the law.

    Given we know there is a classified memorandum, the only way that classified memo would be classified was if there was something there. Yet, it doesn't matter what's on the paper: It only matters that the government has, through this classified memo, confirmed there is something real.

    Page 23: NSA-Qwest communication, but the NSA failed to show that the process would be legal.

    This raises and interesting point: If the process was not legal as the NSA proposed, how can anyone argue that the conduct is classified [ORCON prohibits classifying illegal activity]? The fact that there is admitted in the court opinion a refusal of that request is confirmation that the request was approved elsewhere; and that requirement (which was not legal) was implemented/executed in other non-disclosed locations. Again, this merely confirms, using open information the very thing the government says could not be discussed, thereby destroying any basis for the government to expect privilege to be recognized.

    What most absurd is that the government’s classified memoranda does nothing to insulate AT&T, rather the court has refused to dismiss the case against AT&T suggesting there is (potentially) something that could be gleaned through discovery that would incriminate AT&T. The court has left the door open.

    Page 23: AT&T assertions that they only comply with lawful requirements is meaningless and amounts to a self-serving grant of immunity and compliance. Only the court can decide whether that requirement and conduct is or is not lawful.

    Yet, the FISA is clear; and the Presidential violations are admitted. That does not require review of any classified information. Again, this case is about billing data. The court appears to fail combined [a] admitted illegal surveillance without warrants; with [b] the likelihood that pattern of conduct (refusal to comply with requirements) is occurring in other locations.

    Page 23: That Gonzalez and the President have asserted that one party is or is not a member of a group is meaningless: It is the job of the FISA court to review this. Rather than submit this issue to the FISA court, the President and Gonzalez have made extra-judicial comments that they are complying with the minimization requirements. This is meaningless.

    Going further, the question is whether this disregard for FISA in on area is also continuing in another area. AN adverse inference would suggest that it is. Later, the court discusses conversations between Members of Congress and the President on this data transfer between the telephone companies and the government. The point is that the court has opened the door to holding Members of Congress liable for refusing to ensure that the laws are enforced, which they are required to do. 5 USC 3331

    Page 24: The proper analysis is not whether the information is or is not classified; but whether the illegal conduct is or is not openly admitted. This is a subtle difference between information, state secret, a program, and criminal activity. Think of four circles: They may not coincide. It appears the classified information, as it did with Congress, is diverting attention from the illegal conduct, and pointing to the technical issues. This is a diversion and NSA knows this.

    Page 26: The problem with the complaint is that it is narrowly focusing on "the program" (with the list of classified activity) and not focusing on the illegal conduct that is outside FISA, and has been publicly admitted: We didn't get FISA warrants as required.

    Page 27: Again, when focusing on the legal issues, the court is getting distracted by "the program" (which is technically complicated), and missing the admitted illegal violations of FISA (which the President has admitted he did not get warrants as required).

    Page 28: Whether the disclosure of technical details is or is not made to Congress or someone else is meaningless. The correct approach is to consider the open admissions of having failed to secure warrants. It doesn't matter how the program technical details work or whether they are real: The only reason the President would admit to not doing something was if that were true: He has fatally admitted something contrary to his own interests (that he didn't comply with the law) and it is meaningless and irrelevant what the technical details of that violation are.

    Page 28: It is irrelevant whether the program details were disclosed in open or private settings. if there is a violation of FISA, and this was shared privately, then Congress has a duty to investigate in secret this illegal activity. Whether the details were or were not meant to be disclosed is meaningless; the issue is whether the activity is or is not consistent with FISA. The court appears to have been distracted by the classification issues, and not focusing on the openly admitted illegal conduct: No warrants, despite requirements. Besides, Gonzalez has asserted that we're not at war, so the War-time exceptions he's invoked are irrelevant.

    Page 29: FOIA may protect the content of the document, but the redacted FOIA document is still confirmation that the document exists.

    Page 30: State secrets is not the same as executive privilege. Once FBI, NSA, or others made disclosures to Congress is no longer protected by Executive Privilege. Rather, the Congress upon learning that illegal conduct have a duty to investigate the facts, especially given that the President had, and failed to comply with, the Title 50 requirement to report illegal conduct to Congress. Congress upon learning this information was then complicit in failing to ensure that the illegal activity was investigated or that the law was enforced. Whether the information was or was not provided to Congress privately, publicly, on confidence, or with a promise of confidentiality is irrelevant. Congress may not agree, and no Member of Congress can expect to enjoy immunity when they work with others to violate clearly established rights; or when they engage in a course of conduct that fails to ensure the clearly established Constitutional rights are fully enforced and protected.

    There is no merit to any argument that the “desire of the Executive to talk candidly” with Members of Congress about illegal activity is protected. Rather these are matters of criminal law. Once the Executive discloses this information to any Member of Congress the executive can no longer claim Executive Privilege. It is irrelevant that the Member of Congress is of the same party. Members of Congress are not part of the Executive Branch; any disclosure to them is a disclosure that otherwise destroys any claim of executive privilege. It is irrelevant whether the Member of Congress does or does not act on that information or that information. The only executive privilege the Executive has is to communicate with his staff and contractors. The Congress is a separate branch of government and does not need to recognize Executive privilege once the Executive has disclosed that information.

    Whether Congress and the Executive discuss in pubic or private intelligence matters is irrelevant. Whether the Executive chooses to claim he candidly or incandidly discussed issues with Congress is meaningless.

    It is meaningless to suggest that the [a] decision of Congress to hold the executive accountable is continuing upon [b] a flow of information between the Congress and Executive. Rather, this Congress despite open information flows, refuses to engage in the former. It is absurd for the Court or any one in public office to believe that the potential threat of a loss of information would have any bearing on whether the Congress does or does not independently gather facts through lawful orders. It is irrelevant that the executive officials have threatened Congress to deny information; or that the Congress and Executive have pretended that oversight is contingent upon the ability to privately discuss illegal activity without the expectation of accountability.

    IT is false for the Court to state that the President has made no public disclosures. The President has specifically stated publicly that he did not get warrants. These statements are relevant. The courts conclusion is not supported by the open record.

    Although document contents themselves may be protected, the existence or non-exultance of a document is not absolute. Redacted FOIA documents, containing classified information, can still be released. It is meaningless that the DOJ is the focal point for the FOIA requests. Rather, because of the FOIA-DoJ connection and the involvement DoJ Staff Attorneys have in the outcome of this case, we cannot defer to the judgment of DoJ FOIA. The public should reasonably question the DoJ Statements about FOIA and whether the case law DoJ Staff attorneys have cited is or isn’t relevant, factual, or correct.

    It is an assertion, not something that has been proven, that the national security argument (as a basis to deny government accountability for illegal activity) is relevant given the conduct is public, not protected, and has been openly admitted. If the matter was truly national security related, then the President should have declined to comment on whether the warrants were or were not issued, as required. Rather, by commenting on the non-compliance, the Executive shifts the focus from [a] executive privilege and national security protections to [b] matters of criminal law.

    ORCON requirements are clear: Information may not be classified when it relates to illegal activity. It is meaningless for the court to assert that the information is or is not in an unconfirmed media report; the President has openly made fatal admissions contrary to his interests. This is an exception to the hearsay rule and is admissible. Thus any claim that the media reports are or are not confirmed for purposes of denying a FOIA are meaningless. We need not speculate on a matter that the President has openly admitted: That the FISA warrant requirement was not followed; and that the Attorney General has stated to Members of Congress that we are not at war. Whether those statements are true or not is irrelevant: The problem is that even if false, the President has made a statement that is contrary to the legal requirements under FISA. Either the President is reckless is speaking about illegal activity; or in failing to credibly protect what should have been a state secret. Either way, he cannot claim privilege on a matter that has been openly discussed and admitted by him. What the technical capabilities of that illegal activity is meaningless; for purpose of understanding the violations of the law, we need not consider the technical details and classified information, merely two things:

  • 1. What was the law
  • 2. What was done

    On both counts, the President and Attorney General have confirmed they knew both were not consistent; and that they were not complying with the warrant requirement. It is irrelevant and meaningless to discuss what excuses the Attorney General gave to not comply with a clearly promulgated warrant requirement.

    * * *

    Page 29

    For the court to invoke Fitzgibbon 911 F.2d at 765 is interesting, but meaningless. The court in the opinion states that the disclosures must be official and public for the fact to be considered.

    Again, it is beyond dispute the President publicly commented; and the President is an official. Whether the telecommunications companies did or did not comment on the issue is irrelevant. The test is whether the President did or did not satisfy the requirements in Fitzgibbon. Clearly, he did laying the basis to have a FOIA issued related to the illegal, openly admitted Presidential violation of FISA, which he failed to report to Congress under Title 50.

    It is likely that other FOIAs will reveal the illegal conduct; and that ORCON-related information will show that the DoJ is knowingly suppressing (by rejecting FOIA requests) information related to illegal activity, in contravention to ORCON.

    Whether the phone companies do or do not reveal a sate secret is irrelevant. The simply problem is that the illegal conduct – surveillance without required FISA warrants -- is openly admitted. Whether Bell South and Verizon comments do or do not conform a state secret is a red herring. The only question is who was involved with the illegal activity, not whether the arguments used do or do not confirm a state secret.

    The next step is to then determine how this environment (permitting illegal activity to occur) was broadened to then justify data transfers between the telephone companies and the government. It is not reasonable to conclude that one set of “hoped for hidden illegal activity” would be isolated, especially when the Congress (apparently being told of the illegal activity) has done nothing. The President had every expectation that other violations of the Constitution would face no sanctions. There’s no reason to believe he would restrain himself to only violated the law in a narrow way. Rather, the pattern of abuse, as evidenced by the 750+ signing statements shows that he has an expansive view of power, going so far as to assert (unconstitutionally) his “right” to not enforce the laws, in contravention to Article II. There’s every reason to believe that the Congress not only knows about the illegal conduct in this case, but is aware of other illegal activity but has refused to act on the other issues.

    It is incorrect for the court to link the existence/non-existence of the illegal activity with whether the phone company did or did not properly deny or admit the conduct. Rather, an independent affidavit from Qwest affirms that they were requested, and did not cooperate, with a government request to engage in illegal conduct. The simple question is: Did the DoJ Staff that contacted Quest make a similar request to AT&T?

    A program cannot be hidden from court review when its stated-implicit method violates the law. The issue of whether would-be-terrorists would or would not change their conduct is meaningless; the true objective is that the illegal conduct was occurring before the Sept 2001 events. Any linkage between [a] the program’s illegalily; and [b] the events of Sept 2001 is meaningless when considering the illegal conduct prior to Sept 2001.

    * * *

    Page 31

    The court has given the plaintiffs a chance to update their complaint to conform with the successful Hepting case.

    Page 32

    It is incorrect to conclude that the discovery in a classified setting would compromise a state secret. The court appears to have made no allowance for conducting discovery by dissembling the classified from the non-classified content.

    The court fails to consider whether there is publicly-available information showing that the Attorney General has made misleading statements about the activity. This is an important consideration when reviewing whether or not the government claims are or are not dubious.

    Page 33

    The government arguments in the classified submittal have been, in part, rejected.

    Page 35:

    Refusing to comply with Halkin II. It is problematic when the government pattern of deception is not taken into consideration; or that the court has failed to rebalance the scales: Punish the government for the open admissions it now wants to protected; while at the same time making statements in court that are not consistent with out of court government official statements.

    The court is allowed to make adverse inferences to rebalance the scales. One precedent is the JP Morgan case where the defendant engaged in a pattern of misconduct and the court adjusted the standards of reviews. The court in the JP Morgan case found that the defendants misconduct mandated an adjustment of the scales.

    Page 35:

    It is incorrect to assert that the evidence has or has not been suppressed because of action by a party. Rather, the information is openly available:

  • A. There is a pattern of government misconduct and misleading statements;

  • B. Clear statutory requirements have been ignored

  • C. The President has failed to comply with Title 50 requiring a report to Congress of the illegal activity

    * * *

    Page 36

    It is incorrect to say that AT&T cannot reveal whether it has or has not revealed information to the Government.

    Data flow is one of three options:

  • A. Voluntarily providing without anything in return

  • B. Taking without consent or knowledge

  • C. Mutual agreement to provide something in exchange for fees paid to provide that data

    The correct question is to inquire into whether the NAVY personnel, after reviewing the AT&T fiber optics, did or did not put into practice the information AT&T provided so that the government could get access to the AT&T data.

    Page 38: The core issue is: Is there evidence that AT&T has violated the law, provided data to the government, and has done so outside what it was permitted to do under FISA?

    In so many words, the court finds that if the parties to an alleged conspiracy agree to violate the law, and then claim that illegal activity is a state secret, then there is no basis for anyone to stop the illegal activity. This is absurd. Moreover, it remains to be seen whether the actual objective of that illegal activity is solely related to national security; or whether the data is provided for non-national security related matters, as Bolton’s disclosures show: That NSA data unrelated to bonafide collection efforts, does capture domestic information, in violation of the law.

    The reason the Holocaust continued was the citizens were denied an opportunity to stop the abuse of power. It is absurd we have open admitted illegal conduct, and the court refuses to consider that illegal conduct as a basis to punish the government and those involved so as to ensure the illegal conduct is investigated, not permitted to continue unsanctioned.

    Page 39

    It is absurd to believe that the Congress, which may or may not have been given information and refused to act on it, will be a potential open ear to review subsequent information. Their past inaction is, in their view, precedent to continue inaction. That is not a responsive form of government and raises substantial, real, and pervasive questions of legitimacy.

    * * *

    page 39: Congress as a political branch “is equally responsible to ensure that the law is followed”.

    Key phrase: “equally responsible to ensure that the law is followed” implies the Court affirms there is a ministerial duty and Constitutional requirement on members of Congress individually to ensure that the law is followed.

    This is the precedent to state there is a clear mandatory duty and requirement on Members of Congress to do something. This lays the foundation to impose 5 USC 3331 liability on Members of Congress for failing to ensure that the FISA law is followed.


    [. . . ] Check Joll and Waxman Cases
    ] . . .] Check Docket for Terkel updates on or before 1 Aug 2006

    Judge: Matthew F. Kennelly

    * * *

    Strike 1 and Strike 2 against Adam.

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