Constant's pations

If it's more than 30 minutes old, it's not news. It's a blog.

Friday, July 14, 2006

NSA: Specter Bill Unconstitutionally Targets Pending NSA Litigation

Eff has a copy of the legislation. [ Ref ]

* * *

If you read the citation [ kw = United States v. Klein, 80 U.S. 128 here], you'll see Specter's bill has a problem:

14 “(b) Mandatory Transfer for Review.—
15 “(1) IN GENERAL.—In any case before any court challenging the legality of
16 classified communications intelligence
activity relating to a foreign threat, including
17 an electronic surveillance program, or in which the legality of any such activity or
18 program is in issue,Ref

It is not lawful when Congress is
expressly directing legislation at pending litigation, Congress has arguably attempted to determine the outcome of this litigation Ref

* * *

The problem with Congress making this rule isn't just whether it is unconstitutionally asserting judicial power in removing judicial discretion (which it has no power to do), but whether it is making a fair case that this legislation is not intended to affect the pending litigation or issues (which it cannot).

* * *

Combining the above problem with the following language, present another problem:

41 “(6) DISMISSAL.—The Foreign Intelligence Surveillance Court of Review or a
42 court that is an originating court under paragraph (1) may dismiss a challenge to the
43 legality of an electronic surveillance program for any reason.

This means that once the civil litigation -- pending in federal court -- is consolidated in the FISA court, then on appeal the FISA court could eject dismiss the case without the Executive having to demonstrate that privilege has been adequately invoked.

This is another way of saying that Congress and the Executive have agreed to trump the judicial branch, and deny the public any method to review before any open court matters of the Constitution.

* * *

Self-certifications are meaningless, and amount to an assertion by the Executive of Judicial power:

19 “(3) include a statement setting forth the legal basis for the conclusion by the
20 Attorney General that the electronic surveillance program is consistent with the
21 Constitution of the United States;7 of 18

Only the court can adjudicate whether the program is or is not legal.

* * *

Who is going to review "significant purpose" if the FISA court is denied the right in this pending litigation to review the matter [emphasis added]:

22 “(4) certify that a significant purpose of the electronic surveillance program is to
23 gather foreign intelligence information or to protect against international terrorism;

- What if the evidence to disprove this assertion is destroyed, or marked "national security information" even though it really related to an effort to not comply with the law?

- How will training missions be incorporated or excluded from this provision

- What effort will be made to ensure that "proper or improper" use of information does not include using the information to kidnap, render, or otherwise harm a person's immediate family

- Once assets have been seized, what remedy will there by to recover for damages, if in the government’s view, a discussion of that abuse of power reveals a "classified program" that is actually designed to intimidate those who challenge war crimes and violations of the law?

* * *

Why are we changing the warrant requirement (in the Constitution) to something that is a much lower "reasonable"-standard
35 “(C) a person reasonably believed to have communication with or be
36 associated with a foreign power that is engaged in international terrorism
37 activities or in preparation therefore or an agent of a foreign power that is
38 engaged in international terrorism activities or in preparation therefore;

The heart of the current NSA-related litigation is that the lesser "reasonableness" standard permitted the abuses; and was the circular reason Addington and Gonzalez used to prevent court knowledge of illegally gathered information.

* * *

How will DoJ-NSA comply with the "minimization"-reporting requirements during "training missions"

“(8) include a statement of the proposed 1 minimization procedures;

What audit rights will Members of Congress have to sample the training mission data feeds to ensure that the information is a bonafide training mission;

How will members of Congress be accommodated for no-notice visits to the various NSA-collection facilities to ensure that the training is bonafide training;

Upon refusal of timely provide access (within minutes of a no-notice visit-arrival) to Members of Congress or their always-cleared-for-access-special-agents, what method will be used to quickly communicate to other Members of Congress that NSA appears to be engaged in dubious training missions;

* * *

The White House, DoJ and NSA already show they do not comply with reporting requirements, or time limits with the existing statute.

Why are we imposing, with this bill, another set of dates and schedule limits that show no prospect of being followed:
9 “(11) include a statement of facts concerning the implementation of the electronic
10 surveillance program described in the application, including, for any period of
11 operation of the program authorized not less than 90 days prior to the date of
12 submission of the application—

- Given we still have yet to have a full accounting by DoJ, through the able personnel in DoJ OPR, to review this current illegally activity, what is going to change to create confidence that the new timelines are going to have any deference or respect in the future?

- If there is a violation, why should we believe that the legal community or IG will timely report to Congress that activity, as they have already failed to do under Title 50 and their reporting requirements to DoJ OPR?

- Do we really understand what broke down with the Iraq WMD reporting problems; and given we still have yet to have a full accounting of that issue, why are we discussion a "new set" of procedures that show an equal likelihood of getting ignored?

* * *

Title 50 creates a requirement on the President to report illegal activity. He did not comply with that requirement in this illegal NSA monitoring. Why should we believe this requirement is going to be followed:
28 “(1) the President has authorized the Attorney General to make the application for
29 electronic surveillance for foreign intelligence information;

Once the President and others decided prior to Slept 2001 to violate the law, they had an obligation to report that illegal activity.

- What is going to change with this bill to ensure that the same system-people which have not done what they were required to do, will suddenly start following another reporting requirement?

- Where is the credible showing that Congress is serious about reviewing violations should they occur: Why are we making new rules that are disconnected from the real problem: A failure of Congress to enforce the existing rules?

* * *

Data integrity is an issue. This comparison, although ideal, shows potential for abuse:
8 “(b) Considerations.—In considering the constitutionality of the electronic surveillance
9 program under subsection (a), the Foreign Intelligence Surveillance Court may
10 consider—

What method will be used to ensure that the courts have an independent method to ensure that the information they get (about what actually happened) is real; and that they are able to really match {a} the plan with the (b} real actuals, not the manufactured ones.

What methods does the Congress propose the Judicial Branch be afforded to ensure that the NSA/CIA/DoD IG, which have failed, will be able to detect differences;

Once there is a problem with actuals, but DoJ OPR is blocked from reviewing those matters, who may the courts consider the DoJ AG block of DoJ OPR in its adjudication as to whether the actual conduct is or is not lawful?

* * *

Why is Congress outlining a provision for the Court to have to re-state what NSA is already a requirement:
21 “(c) Contents of Order.—An order approving an electronic surveillance program under
22 this section shall direct—
23 “(1) that the minimization procedures be followed;

Is there a problem that NSA personnel do not understand that minimization is always required;

When is minimization ignored during "training missions"

How has this "problem within minimization not being followed" been used as a ruse to circumvent the FISA requirements

What method will the Congress provide to the Courts to ensure that repeated violations of the procedures result in a direct presumption that the assertion of "national security" and "privilege" are dubious efforts to hide illegal conduct?

* * *

What adverse judgments does Congress want the Court to consider when others refuse to comply or cooperate with:
31 “(3) that any record concerning the electronic surveillance program or the aid
32 furnished retained by such carriers, landlords, custodians, or other persons are
33 maintained under security procedures approved by the Attorney General and the
34 Director of National Intelligence; and

- If a common carrier decides that the warrant they have is not legitimate, may the court consider that refusal as a basis to make an adverse inference about the nature of the initial claims and assertions?

- Once there is a showing that there is no warrant, or that a common carrier has refused to comply with what it concludes is a dubious warrant, how will that non-existence be factored into criminal sanctions of "fraud upon the court" issued against the attorneys in DoJ that otherwise falsely state the contrary to the court?

- Once DOJ Attorneys leave, but continue to make public statements that are false, will the public be able to make claims against the former DoJ Attorneys for their false representations; or should the public wait (forever) for the lazy ABA to "get around" to conducting a white wash peer review?

* * *

Will Congressional investigators be able to provide in open hearing session evidence that the award fees planned for payment were not expended because NSA contractors did not comply with the contract requirements:
35 “(4) that the applicant compensate, at the prevailing rate, such carriers, landlords,
36 custodians, or other persons for furnishing such aid.”.

How will award fee payments, non payments be disclosed to the public

What method will be used to ensure that the contractor, when it violates the contract with NSA and does not comply with the Constitution, is quickly sanctioned in a timely way?

If NSA contractors are paid to do things that are not legal, but it is a ruse to pretend to comply with the law, how will the court sanction the contractor through Article 1 Section 9, restrictions against spending money on illegal things?

* * *

Putting aside ex post facto and whether this does or does not affect this litigation, suppose this bill does pass: How will this "solution" address this problem facing the Executive -- Having committed violations of FISA, and those matters are pending before the court. It doesn't.

Rather, this is a ruse effort to delay, tie this issue in court, and delay a resolution until after the election.

Again, let's think big picture. It's July 2006, fully seven [7] months after the NSA disclosures in the NYT, and the best Congress and the Executive can do, other than refuse to investigate, is to rely on sham legal arguments to trump the judicial branch.

This is not leadership, but evidence of an ongoing conspiracy to suppress evidence related to illegal activity. It remains to be seen how this illegally obtained information was subsequently used to target Americans, and then render them to Eastern Europe, in violation of Geneva.

* * *

Once a Member of Congress learns there is a problem, what restrictions will be placed on ranking members to get information from the NSA-CIA-DoJ IG:
13 “(c) Rule of Construction.—Nothing in this title shall be construed to limit the
14 authority or responsibility of any committee of either House of Congress to obtain such
15 information as such committee may need to carry out its respective functions and
16 duties.”.

Why is Congress asserting a standard of conduct that supposedly should already be required;

If Congress is denied this information, what mechanism will trigger a Congressional hearing;

If we have the same lazy crew in Congress that chooses to do nothing about a violation, what use is there to have a reporting requirement, but no sufficient catalyst for an automatic trigger for oversight hearings?

Will Congress agree to let itself be reviewed by an outside auditor on its (in)effectiveness in overseeing the issues

Once Congress chooses to ignore problems, how will the courts be able to review this matter, and include members of Congress on the potential lists of co-conspirators

Given US government employees take a 5 USC 3331 oath to "do their job" and "protect the Constitution," why are we making another set of rules that tells them the same: Do their job; if they fail -- are they going to have attached to that failure a trigger for a 5 USC 3331 investigation?

* * *

There is a problem with this assertion -- there is no inherent power of the President to collect information on matters that Congress has an equal role in reviewing: Treaties

23 “Nothing in this Act shall be construed to limit the constitutional authority of the
24 President to collect intelligence with respect to foreign powers and agents of foreign
25 powers.”.

If The President is granted this "power" to collect information, what effort will Congress make to ensure it independently collects samples of that information to ensure the data the Executive provides to Congress is legitimate?

How will Congress use an NSA-like sampling system to monitor the Executive conduct

What method will Congress create for itself to independently gather information, using an NSA-like system that will independently support Congress' advise and consent power in re treaties

How will Congress use NSA-like technology to gather information about pending Judicial branch appointments, and allegations that Executive Branch General counsel have not fully enforced the treaty obligations?

* * *

It is not appropriate to suggest that an Act of Congress, however convoluted it is interpreted or applied can trump the Constitution:

34 (B) in paragraph (f), by striking “from international or foreign
35 communications,” and all that follows through the end of the paragraph and
36 inserting “that is permitted under a Federal statute or the Constitution of the
37 United States.”

The above provision permits conduct that may violate one or the other.

What method will be used to ensure that the activity is fully compliant with the statute, Constitution, and treaty

How will the courts be brought into the nexus to review this matter, and ensure that there is no room for the Executive-Congressional branches to agree to keep quite about the misconduct

When there is an allegation of a violation, but neither Congress nor the Executive responds, how will the public provide information to the court

What power will the court have to review information related to retaliation

How will evidence of secret retaliation be reviewed

What sanctions will be imposed on the executive for committing acts of violence, retaliation, or other abuse of power when that action is solely directed at those who oppose an illegal war of aggression or other illegal conduct?

* * *

Here's Addington's (unacceptable) handiwork:

(I) by inserting “or under the Constitution” after “authorized by
6 statute”; and

The full text, if revised, would read:

(a) Prohibited activities
A person is guilty of an offense if he intentionally—
(1) engages in electronic surveillance under color of law except as authorized by statute or under the Constitution; or Ref: Original/Current

Who's interpretation of the Constitution?

If Addington says, "This is the correct interpretation" how will the 180-certifcation that "this is Constitutional" have any meaning, when the real issue is the Addington-crew has asserted a phony Article 1 Section 8 power but applied that to the Executive

How can you argue that something is "authorized" by the Constitution, when the conduct has been subject to a lower standard of "reasonableness"?

What will be done to ensure that the Executive does not assert Article 1 Section 8 "necessary" and proper-clauses, on matters that Congress has a shared power to review: Treaties, agreements, or nominations related to ABA attorney conduct for appointment?

* * *

This is problematic and will not work:

in a manner or for a purpose not authorized by law.”;11 of 18 line 13/14

What will be done to ensure that phony "use of force authorizations" (for wars of aggression" are not used to trump the Constitution?

* * *

This won't work, it could apply to someone reading the newspaper, or listening to the radio or sending/receiving personal e-mail:

is expected to transmit or receive foreign
27 intelligence information while within the United States;

Too broad.

* * *

Nope, permits pre-textual reasons for surveillance:
is reasonably believed to be in the United States by intentionally
33 targeting that person

As does this:
electronic surveillance is solely directed

What if the "person" is "not the intended target" (as a ruse) -- how will this be prevented?

* * *

It sure would be funny if the NSA-AT&T-NARUS system, used to intercept phone data, also had a means to do the same with the phone billing data and SWIFT.


  • The same software patents, and people involved in the AT&T and NARUS development efforts have also been affirmatively linked with the same software programs used to mange the swift information; and

  • The same excuses in the wake of 9-11 "Oh, we'll get warrants," which was done in both the NSA-FISA issues, and SWIFT. Despite public assurances by Ashcroft and Bush that there would be warrants used, they were not obtained as promised.

    [Another issue: With respect to the SWIFT surveillance, the NSLs have been struck down as unconstitutional; it's unclear how the NSLs used to access SWIFT data (without warrants) could be constitutional; or the SWIFT program (which does not rely on required warrants) can be lawful.]

    Once more, the US civilian population is being subjected to phony arguments to avoid accountability for violations of the laws of war, and use of illegally obtained information. Rather than face the legal issues, this government wants to suppress the public ability to gather facts and litigate on matters that should have been resolved by the government.

    This government refuses to engage in oversight. Justice Scalia asserted that the rules of evidence need not be enforced because there were remedies in the court. This bill hopes to prevent the public from doing just that, and deny the public from what Congress refuses to do: Check abusive power.

    Congress hopes to deny We the People the right to petition for grievances on matters related to pending litigation and Constitutional matters. This is a subsequent violation of the 1st Amendment, which bars Congress from making any law the prevents the public from petitioning for grievances.

    The problem isn't just in the White House, it's spreading. The NSA-FISA issues are linked with rendition and Swift. Using illegally obtained information, Americans have been unlawfully rendered to Europe, and detained in contravention to the laws of war and Geneva. This bill isn’t a solution, but an orchestrated effort to “legalize” a cover-up of war crimes.