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Thursday, August 31, 2006

Cheney, Addington Misrepresent Required Ministerial Duties As Discretionary, Unreviewable Power

The Iran-Contra Minority Report ("Report") was a perversion of American law. Addington and others selectively extracted key phrases, and wholly misrepresented the law. The 1987 perversions have continued well into 2006. One problem in the report was recasting mandatory ministerial duties and requirements as powers.

The change is important not only for FISA, but on issues of Presidential accountability. This note highlights how Addington and Cheney have shifted the President's duties, which could be prosecuted by any one of the fifty (50) State Attorney Generals, into someone vague, which the President hopes to be beyond oversight by either branch of government or the public.

* * *


This note outlines a sample problem in the 1997 Iran-Contra Minority Report. Then-Representative Cheney and then-RNC Staff Counsel David Addington, now the Vice President's chief of Staff, among others authored and published the minority report.

The issue is confusing ministerial requirements and power. The two are not the same. The confusion is at the heart of hear of Congressional malfeasance over the President's criminal violations of FISA.

Ministerial duties are requirements under FISA. There is no discretion, as Hamdan reminds us. Failure to perform mandatory ministerial duties is subject to court and Congressional review. Power is something else. However, in the President's universe with Addington and the Vice President, a broad claim of Presidential power is something this President says others cannot review. This too is incorrect.

The distinction has direct bearing on the ongoing privacy litigation between the States and the President over the illegal surveillance. It is incorrect for Asst Attorney General Keisler and Verizon Counsel to assert that the President and contractors have discretion whether to follow or not follow state privacy statues. There is no discretion on ministerial requirements and legal obligations. Contrary to the DOJ framing, the legal issue is not a separation of powers, but an issue of criminal law.


We dissect a subtle phrase to illustrate the Executive Branch legal maneuver and defense strategy. The approach has one objective: To protect the President and others from criminal prosecution. The ruse is understood. This discussion starts with the quote from the Iran-Contra Minority Report; outlines the citation error in the report; and discusses the implications of the misrepresentation.

The text of interest is just before Footnote 28, discussing the Minority's views on Presidential activities:

In all of the quotations above, the Federalist was not treating powers as if they were randomly distributed. “Separated powers are not separated arbitrarily,” writes one constitutional scholar.”27 “They are divided on principle, and not according to the prudential considerations of the moment,” concludes another.28

Iran-Contra Minority Report, Chapter 2, Page 460

* * *


  • 1. The Minority Report citation at footnote 28 is incorrect;

  • 2. The actual quote was something else, had nothing to do with power, but with governmental functions. It appears the quote was not actually taken from the original text, but from another footnote, from another document; and

  • 3. At best the quote, as used in the Minority Report, mixes the following discrete concepts into a single soup: Separation of power; governmental functions, and government power. At worst, the Republicans have consistently relied on this creative wordplay to thwart lawful oversight and prosecution of criminal activity.

    * * *

    Comparison: Citations

    It appears there is a citation error because the original journal was never used, but a footnote was lifted from another source.

  • A. Here is the citation as it is listed in the Iran-Contra Report, for footnote 28: [ 7 Vanderbilt J. of Intl’l L. 71, 75 (1973) ]

  • B. Here is the correct citation for the Journal: [ 7 VAND. J. TRANSNAT'L L. 71 ]

    Here is the problem: The title only relates to a journal before 1971:

    Vanderbilt journal of international law NOW Vanderbilt journal of transnational law Holdings: vol 1, 1967-vol 4, 1971

    Vanderbilt journal of transnational law Holdings: vol 5, 1971-

    - -

    Chart 1: 1987 Iran Contra Minority Report Citation Ignored Original Document

    Reader Tip: Open a second browser; resize both browsers side-by side to fit vertically in your monitor; keep this chart below stationary in browser1; then read the points below in browser2. Move back and forth between the text and this chart using the [+1] numbers, which correspond to the event-years. Use your finger to point to the chart as you read the text. Notice your hand movements as you read.

    1970 1971 1973 . . .1983 1987
    Original [+1]
    Original ------[+2]
    Changed [+3]---------------------------
    Citation [+4]
    Iran-Contra [+5]
    A. The events are on the left, vertical axis.
    B. The years are horizontal, x-axis.

    [+1] Original article in 1973
    [+2] Original journal name [1967-vol 4, 1971]
    [+3] New Journal Name, [vol 5, 1971 - present]
    [+4] Citation in 1983 article
    [+5] Iran-Contra Minority Report [1987]; Text/Footnote 28


    1. The original article [+1] used the correct journal name [+3].

    2. The Iran-Contra Minority Report citation in 1987 [+5] used a name [+2] changed in 1971 [+3]

    3. The report [+5] changed the citation words [+4], creating false words and an invalid citation [+5], which didn't match (a) the original article [+1]; (b) the changed journal title [+3]; or (c) the subsequent citation [+4].

    4. They [+5] changed the citation [+4] to the incorrect title [+2] because they didn't have the right title [+3] before them in the article [+1] to verify.

    5. They never checked the original article [+1]; nor verified whether the citation was correct or incorrect [+4]. Rather, they knew [+5] that the Journal Title had previously been something else [+2]. Rather than admit they [+5] did not review the original article [+1], they [+5] changed the citation [+4] to what they thought was correct [+2], not what was true [+1] and [+3].

    6. The only way they [+5] could have changed any text [+1] was if they relied only on the citation [+4], and not the original article [+1] which had the correct journal name [+3]. Rather, had they [+5] reviewed the original text [+1], they [+5] would have realized the journal name had changed [+3], was no longer the old name [+2], and the citation [+4] was correct.

    7. They never examined the original text [+1]. The only way they could have found the original article [+1] was if they used the correct title [+3]; but they [+5] didn't know what the title was [+1, +3] because they never reviewed the text [+1], nor were they aware that the name change [+3] occurred [+2] before the article was written [+1]. However, their citation [+5] shows nobody verified (a) the correct title [+1, +3]; (b) that there had been a change in title [+3]; or (c) that the text in the report [+5] no longer fairly represented the original author's words [+1]. They [+5] twisted the words [+1] to support an agenda of excuses, not accountability for violations of the law and mandatory, clearly promulgated Congressional requirements in the Boland Amendment.

    8. They assumed (a) nobody would check; (b) they didn't check [+5]; and (c) without confirming the assumed-error [+4], they [+5] assumed that the citation [+4] they had modified [+5] had incorrectly cited [+4] the original article [+1].

    9. Knowing that they [+5] had misrepresented the original words [+1], they tried to make it look as though the words [+5] were from an original text [+1] (which they never reviewed) by changing the journal citation title [+4] to what they thought it would have been [+2], not what it actually was [+3].

    10. They didn't realize [+5] that (a) the journal title of the article [+1] they used from the citation had changed [+3] before the article was published [+1]; and (b)that the citation was correct [+4], and did not need to be changed to the incorrect, original title [+2]. They would have known the correct title [+3], as reported in the citation [+4] was valid had they reviewed the article [+1], rather than only the citation [+4].

    11. They knew [+5] the journal title had changed [+3], but they didn't have the original document [+1] to confirm the correct title [+3].

    12. They changed [+5] the citation [+4] to the wrong one [+5, +2] to make it appear as though they [+5] had corrected an error in the citation [+4].

    13. All they knew [+5] was that the journal title used to be different [+2]. Rather than check the original article [+1], they assumed the citation [+4] was wrong and changed it [+5] . Had they looked at the original article [+1], they would have known the citation [+4] was correct [+3], and would not have to be changed [+5] to the incorrect title [+2].

    14. This is not a simple error. They got the quote wrong [+5]. They lifted the quote [+5] not from the article [+1], but from the 1984 citation [+4]. There is no reasonable way to get the quote partially wrong [+5], but match the wrong title [+2]. Had they used the original article [+1], they would not have made an error in the title [+2, +5]. Rather, they lifted the words from the citation [+4], changed the words [+5], modified the citation [+4] to match the original title [+2], not realizing (a) the title had changed [+3] before the original source publication [+1]; and (b) the citation was correct [+4]. They never looked at the original text [+1] to establish the correct journal title [+3]; and nobody verified whether the work product [+5] correctly or incorrectly reported the original work content, details, or source [+1]. Using their citation [+5], it is impossible to find the original work [+1]: The journal title listed in the report note [+5] (a) does not lead to the correct journal title [+1, +3], but to the previous journal in the wrong year [+2]. Also, the listed journal title [+5] does not match the publication date or journal name on the article [+1]; rather, the journal title listed in the report citation [+5] incorrectly matches a title [+2] which does not correspond to the article [+1] or the timeline associated with the new journal title [+3]. Both the report citation [+5] and the incorrect journal title [+2] are inconsistent with the different time window of the journal title [+3] and correct article [+1].

    15. Their intentions are criminal obstruction of justice. If their words [+5] were true [+1], they [+5] cannot explain why the words changed from the original [+1] to how they have been misrepresented [+5]; if their legal research was valid, they [+5] cannot explain why the changed-title [+2] does not lead to the correct journal [+3, +1]; if the objective and goal of their representations were respectable and honorable [+5], they cannot explain why only some of the words [+5] match the original [+1], but the reported title in the note [+5] is wrong [+2], and does not match reality [+1, +3]: The words, title, and dates. Their citation's journal-title [+5] only matches a fictional journal, which did not exist in 1973; nor does the citation-title [+5] match the journal associated with the article which existed in 1973 [+1].

    16. This was a deliberate, fraudulent misrepresentation and warrants an increase in audit scope per Statement on Accounting Standard 99 (SAS 99); an urgent, documented message from the Congress to the DoJ OPR and DoD Inspector Generals; and a notification to all fifty [50] of the State Attorney Generals: The criminal misconduct continues in 2006. There are too many errors in the report [+5] to believe they made a simple error. Rather, they deliberately changed the words [+5] to misrepresent the article; and excluded key words to change the article focus from an issue of specific governmental duties, to a broader theme of power, consistent with the Iran-Contra Minority Report mythology [+5] and the excuses not to enforce the ongoing FISA violations between 2001-2006. Those in the RNC who know of this problem have been silenced with arrogant Addington's verbal abuse. Addington, like Gonzalez never graduated from a service academy because he is reckless, incompetent, and stupid -- driven by an agenda [+5], not reality [+1]. Both are insecure with themselves, quick to unquestioningly assent to stupid authority, unwilling to face their internal defects: They prematurely left their respective service Academies because they were unable to complete their job. They cut and ran, are weak, and untrustworthy. They remain defiant of their oath, and they have assented to illegal policies which have supported war crimes. These are subsequent violations of Geneva, and may likely implicate them before a war crimes tribunal. They know full well their personal liberty and lives are at stake: The possible consequence for their criminal involvement in these war crimes and illegal policies is the death penalty. Gonzalez and Addington are willing to take the nation to new wars in order to distract attention from reality [+1]: They are weak, insecure, stupid war criminals.

    * * *

    [ Intermission]

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    * * *

    In 1987, the Republicans were thinking in terms of what was pre-1971, not what was or should have been physically before them in physical space: The 1973 Article with the new Journal Title. The article cited was from 1973, two years after the name change, but they didn't know that because they didn't compare:

  • A. The actual article [+1], with

  • B. The year of publication: 1973 [+3], with

  • C. The year of the name change: 1971.

    This is a fatal error. It shows us they didn't check the actual document, nor could anyone prior to publication independently rely on the citation to verify the source, quotation, citation, and use was accurate. It is impossible to rely on the Iran-Contra minority report footnote to find the original. There was no Vanderbilt Journal of International Law in 1987, only 1971. There was in 1971 and 1987 a Vanderbilt Journal of Transnational Law. If you search for the former, you'll find the error: Ref, with 3,800 hits; however, the title does not exist as a bonafide journal name in any legal law review index that includes publications only after 1971. Rather, the correct title is here, with 78,000 hits. The different numbers mean that the title is still not consistently cited correctly.

    After noticing the error, one would have to know to change the reference name to the correct journal name. The Republicans made at least three errors: First, using the wrong journal name; second, failing to confirm the citation prior to publication; and third, not recognizing that the listed title does not match any other public journal, or the journal used, if used at all from the correct time period. Their textual misrepresentation might have escaped detection had they chosen the right journal title from the right time.

    Given the text use in 1983 was only four years before the 1987 Minority Report, and the selective use of phrase, we judge they never looked at the original text of 1973, and simply relied on the citation, cropping the inconvenient text, and presenting it as if it were gleaned from the original. Conversely, had they looked at the original journal, they would have found the correct title. However, their citation would make that search impossible.

    Their job is to explain how they knew to change the text to what they wanted, but they cannot rely on their sources to explain the change. It is more reasonable to conclude they lifted the citation, never checked the original, and incorrectly wrote down a title, never realizing that the copied title was incorrect because they never checked the original source.

    * * *

    Comparison: Governmental Duties v. Power

  • A. Original Text [+1] [As reported, original emphasis]
    governmental functions be divided on principle, and not according to the prudential considerations of the moment

  • B. Minority Report [+5] [note 28]
    They are divided on principle, and not according to the prudential considerations of the moment

    - -

    The key is to fuse the two quotes together into a composite quote, and you will see what has been altered:

    governmental functions -- they are/be divided on principle, and not according to the prudential considerations of the moment

    Recall, this was from a time before blogs, and a signed Congressional report. Notice at least five changes, which are not simply an error, but a deliberate change:

  • 1. The phrase, "government functions", different from power, is removed without comment;

  • 2. "They" is inserted;

  • 3. "They" is quoted in the Iran-Contra report, but it not part of the actual text, and should not be included in the quotations;

  • 4. The reader is asked to believe that "they" relates to power, when, if properly used as a replacement for what has been removed, is a replacement for something entirely different: Governmental function.

  • 5. The verb tense changes from a plural "are" to a singular "be"

  • 6. Although the verb in the sentence has been changed in a misleading way, the change is still quoted as if part of the original, which it was not.

  • 7. Further, the way the verb is applied in the original, government functions are presently fused into a conclusion; however, the changed verb suggests a speculative, future fusion of power into a new result. One approach relates to a process that has already been defined in a historical context, in terms of what has already happened; the changed-version is a transformative process, which implies something new.

    7A. This is an illegal change to the Constitution, outside the Amendment process.

    7B. It is also an illegal exercise by the Republicans in the legislature of assenting to a non-judicial interpretation about the Executive. This violates the Separation of powers which only allows the court to make this determination.

    DoJ's separation of powers argument has nothing to do with the States, but with the Executive finally being called on the carpet for doing what was well underway in 1987: Executive consolidation of power; Legislative assent to the Executive; and legislative assent to Executive interpretation of the statutes and Constitution.

    This was crafted by lawyers, people, and individuals, trained to do otherwise: Preserve the Constitution. They have defied their oath. They are a threat to the Constitution. It is constitutional for the States to assert, through Article V, the requirement that the US government, not the Executive, protect the State's right to a republican form of government. One key aspect of a republican form of government is not only passing laws, but having a mechanism that enforces those laws. The Attorney Generals are well within their power and Constitutional mandate to prosecute not only the President, but the legal staff working in the Department of Justice.

    - -

    The confusion is terminology although subtle, it is important. The use of "They," as originally written, does not refer specifically to power, but to governmental duties. However, the Administration would have a hard time arguing that governmental functions are the same as power. OMB distinguishes between power and governmental functions, as something that cannot be delegated to the contractor. Also, when discussing governmental functions in Iraq, we think of delegating that function to the lowest level. Both OMB and Iraq examples demonstrate that the term "governmental function" has nothing to do with broad power, but a specific task, duty, or requirement governed by specific procedures, guidelines, and statutes.

    The errors listed are not a simple error, but a consistent pattern of misrepresentations by the Republican legal community. When you study the Iran-Contra Minority Report, carefully cross-checking cited-text with actual-text in the original, the Republicans are in a different reality. You will see that the pattern is the same:

  • A. Selective cherry-picking of statutes;

  • B. Misapplying the court opinions;

  • C. Using phrases from case law contradicting the case rules;

  • D. Arriving at illegal legal outcomes and opinions.

    These are important problems to note. The misconduct is the basis to bring criminal charges against the DOJ Staff for crafting illegal policies which violate Geneva.

    These patterns, errors, and unreliable citations are not an isolated phenomena to 1987, but consistently applied by Addington, Yoo, Gonzalez, Bybee, and the DOJ Staff well into 2006. The approach continues with the NSA litigation. In short, their work products are trash and unreliable.

    Further, the work products, as crafted in their illegal form, are evidence that the DOJ Staff has produced illegal opinions. This is an important matter. Legal officials have been impeached for producing legal work products like this. This is very serious. Recall, the original objective of an impeachment was to give Parliament the power to remove an official that the King would not adequately supervise, or the court would not convict and remove from office.

    This impeachment-objective is important to consider when reviewing the arguments over whether the impeachment process is or is not different than the criminal process; whether impeachment must precede prosecutions; or whether, in the absence of an impeachment, a criminal prosecution must be used. Arguably, when the Congress, despite having the power to remove a minister under the President, refuses to take action, just as the President refuses, then the only option to protect the Constitution is for the states to lawfully prosecute that minister or official.

    * * *

    Recall, the Iran-Contra Minority Report was written in 1987, meaning that all citations of the above Vanderbilt Journal after 1987 could not have been used. Rather, there are only two citations prior to 1987.

  • Citation 1 -- 1984

    [Begin CITATION]n61 See, e.g., Thurow, Presidential Discretion in Foreign Affairs, 7 VAND, J. TRANSNAT'L L. 71 (1973) (citing the views of Locke, Montesquieu, and Hamilton).[END CITATION]

    Peter E. QuintThe Separation of Powers Under Carter, February, 1984. [ 62 Tex. L. Rev. 785 ]

    - -

  • Citation 2 -- 1983 [+4]

    [BEGIN CITATION] n18 Thurow, Presidential Discretion in Foreign Affairs, 7 VAND. J. TRANSNAT'L L. 71, 75 (1973) (The separation of powers requires "that governmental functions be divided on principle, and not according to the prudential considerations of the moment.") (emphasis in original). [END CITATION ]

    Erwin Chemerinksy, Controlling Inherent Presidential Power: Providing A Framework For Judicial Review, May, 1983. [56 S. Cal. L. Rev. 863]

    - -

    Subsequently, this sources was cited twice, once in 1994 [ 17 Suffolk Transnat'l L. Rev. 350 ], then in 2004 [ 82 Wash. U. L. Q. 1001 ] n198, which included Yoo in the footnote.

    * * *

    Discussion of Power

    Keep in mind the thrust of the original quote [+5]:

    In all of the quotations above, the Federalist was not treating powers as if they were randomly distributed. “Separated powers are not separated arbitrarily,” writes one constitutional scholar.”27 “They are divided on principle, and not according to the prudential considerations of the moment,” concludes another.28

    Contrast this with a different citation [ 82 Wash. U. L. Q. 1001 ] from 1984:

    Glen E. Thurow, Presidential Discretion in Foreign Affairs, 7 Vand. J. Transnat'l L. 71, 86 (1973) ("The thrust of the Federalist Papers... . is that the great discretion required in foreign affairs can be made compatible with republican government not by dispersing the power to the greatest extent possible, but by concentrating it in the hands of the President.");

    Taking the broad view, it appears they've taken the gist of this second passage, and melded into the undercurrent of the Iran-Contra minority report [+5]. Notice the following themes across both quotes:

  • Dispersion

  • Distributed

    They've transformed the idea of foreign affairs power -- as an ideal, as it relates to the Executive -- into a general rule of domestic power, regardless the Constitutional requirements that separates that power from the other two branches. Yet, separate power does not mean unreviewable conduct, especially when there are ministerial requirements without discretion. This is what was done:

  • A. Exercised discretion overseas, and applied it illegally at home;

  • B. Expanded the idealized notion of Executive discretion abroad, and illegally applied that discretion at home;

  • C. Asserted that a concentration of foreign relations powers is the same as the concentration of domestic governmental duties. This is unconstitutional.

    This is merely one of the lines of evidence showing how the executive discretion, which has been abused abroad, has been brought home. It was one thing for them to hide war crimes abroad where the videos might have been destroyed. The problem is when the war criminals wandering the streets of Baghdad return to wander the police station and community: They do not see a difference between Iraqi and American civilians. This government view its actions (and abuse of power and rights) as necessary to protect "freedom" -- their freedom to abuse and remain beyond accountability or review; not We the People’s freedom to enjoy our rights and privileges, free from abuse, intrusion, or violation.

    * * *


    The original text [emphasis changed, +1] "governmental functions be divided on principle, and not according to the prudential considerations of the moment", is wholly misrepresented in the Iran Contra Minority Report [+5].

    Relevance To 2006 Proposed FISA Changes

    Recall what we've been told about FISA: That despite changes in technology, FISA is fine. We've heard this this year.

    Put aside the fact that the Members of Congress have failed to enforce the law, and have conducted no meaningful oversight or fact finding on the violations of FISA. The entire basis for the proposed changes to FISA are based on a misreading of the Constitution, American law, and at odds with the 5 USC 3331 oath of office requirements: To ensure that ministerial duties are enforced as requirements, not given deference as a broad Presidential power.

    Relevance to the Maine (MPUC) Litigation

    The Verizon memoranda asserts a separation of powers issue divides a resolution. However, this misreads what separation of powers means, and is unrelated to ministerial duties. There is nothing Constitutionally in the way of the States enforcing state privacy statutes.

    Relevance to the NJ Subpoena

    The scale tips in favor of the NJ Plaintiffs in their assertions that the evidence they have, showing there was illegal conduct prior to 9-11, has nothing to do with a lawful objective, but with an abuse of power. Moreover, now that we know the abuse of power was orchestrated, the real issue becomes: Who will prosecute the known violations of the law, which are clear ministerial duties per 5 USC 3331 oath of office. DoJ OPR has been blocked.

    * * *

    At this juncture, it’s most likely that Addington and the others never read the original report or article. What is unmistakable, is that they’ve changed the meaning of the words from governmental functions to powers.

    This is very important. By changing it from a function or ministerial duty, they’ve asked the world to believe that we have a generic power. Yet, under FISA and the oath of office, the specific requirement, and basis for finding liability, is if there is a problem or violation of a clear ministerial duty, as was done with the FISA violations.

    It appears Addington, Keisler, Yoo, and Bybee, have asserted a false legal proposition on the basis of something that has nothing to do with (narrowly defined) power, but with a specific ministerial requirement.

    * * *


    1. State Prosecution of President

    The State Attorney Generals should be contacted, and encouraged to prosecute the President. The President is not above the law. Congress has the power to impeach, but they refuse. Nothing in the Constitution prohibits the State Attorney Generals from prosecuting the President.

    Impeachment was originally designed as a tool to target the King's ministers when the King refused to remove them. Impeachment as it was designed was legislative action when the King and courts refused to act. Today's problem is the Congress, despite the impeachment, refuses to charge this President with a crime.

    Presidential immunities and privileges need not be respected when they have been abused. DoJ has no credible basis to assert the President is immune to criminal prosecution by a State Attorney General.

    2. Changing Duties To Power

    The above information is another piece of evidence that the Congress and American voters have been manipulated to embrace legal fiction. It is important to take the broad view: To what extent has the country been given legal non-sense, and what does the law really say.

    Prosecutors at the state level will have to decide how much work you want to spend rechecking each of the notes in the Iran-Contra Minority Report. As you review the information, you will have to determine how much time you want to spend finding each word, and how a specific ministerial duty has been changed into a generalized notion of power. The change is important. The issue is to what extent the President and others have knowingly lied about the law. DoJ Staff could be impeached for providing illegal opinions to the President, and prosecuted for war crimes in generating illegal policies which violate the Geneva Conventions.

    State Prosecutors may wish to review the extent to which the current Congressional debate, and assent to Presidential versions of what did or didn’t happen in re FISA, is or is not connected to the clear muddying of the waters: Ministerial duties, as Hamdan states are clear requirements; they are nothing to do with power, but specific obligations and requirements which the President has under FISA.

    3. Fraud Upon the Court

    State prosecutors and the NSA plaintiffs are encouraged to consider to what extent the NSA litigation has been premised on a phony notion of what has or has not been in the record. We’ve already seen the Senators in Hamdan fabricate changes to the record. The Supreme Court discovered the Senators comments were inserted later, but not actually an interchange, as represented to the Court.

    It remains to be understood to what extent the Senior Executive Service, White House, and DoJ Staff have relied on perverse notions of the Constitution; and to what extent contractors have failed to remove themselves from this widening FISA conspiracy.

    * * *

    Other Material

    Ref Iran Contra Minority Report Analysis.

    Ref Iran-Contra Minority Report, when examined, fatally undermines White House legal arguments and defenses in re 2001-6 NSA-FISA violations and the 1997 Iran-Contra Affair.

    - -

    Power vs. Ministerial Duties: Both Must Be Constitutionally Used

    Ref Verizon's letter points to "Separation of power." This is a phony argument. FISA has nothing to do with unreviewable power, but with a ministerial requirement on the government and their agents/contractors to follow the law.

    Ref Contrary to Verizon-DoJ assertions in re FISA, Guantanamo, rendition, and torture, contractors are subject to the law.

    Also, OMB Policy Letter 92-1: Clearly outlines governmental functions. Recall, a governmental function, with specific requirements is not the same as a delegated power in the constitution. Functions are regulated by guidelines, policies, procedures, and specific tasks. Power is something vague, and has been only narrowly been delegated. The 10th Amendment reminds us that all non-delegated powers are reserved for the States and People.

    - -

    Precedent: Impeachment For Illegal Policies and Illegal Opinions

    Not only is the legal advice supporting war crimes illegal, it's also impeachable. This Congress refuses to impeach; and the President blocks lawful investigations of violations of the law. Where the Federal government refuses to act through either impeachment or federal court, the States retain the power to protect the Constitution by lawfully prosecuting DoJ Staff, US Attorneys, and the President for a criminal conspiracy against clearly promulgated State Citizen Constitutional rights.

    - -

    [Note: Story, the author at the link, was cited in Jones v. Clinton, and well known to the Justices.]

    Ref We the People are the Sovereign. Here is the DoJ Staff Counsel's problem, as it relates to FISA, Geneva, rendition, torture, and Iraq WMD: Some have been impeached for, inter alia,

    . . .misleading their sovereign by unconstitutional opinions, and for attempts to subvert the fundamental laws, and introduce arbitrary power . . . for giving bad counsel to the king;. . . enticing the king to act against the advice of parliament . . .

    - -

    Ref Ref The objective of impeachment was to remove those protected by the King, and were otherwise not punishable in the courts. Today, the situation is the opposite: Congress refuses to impeach; and the President is blocking federal criminal convictions. In order to protect the Constitution, the states have the power to do what impeachment was supposed to do: Punish those who abuse power and violate rights. No one is above the law, not even a "call for impeachment first." It is not Constitutional for anyone in DoJ to thwart the States from enforcing state law; and it is a violation of the 10th Amendment to prohibit any state from exercising powers not delegated to the Federal government: The exclusive power of the State to enforce state law, and protect Constitutional rights, especially when all other political and legal options fail.

    - -

    The Constitution Is The Supreme Law of the Land

    Ref This Constitutional guarantee, as applied in 2006, mandates the fifty [50] State Attorney Generals prosecute the President before a jury under the US Supreme Court for violating State criminal laws. It is illegal under all state Constitutions to engage in a conspiracy to violate the law, deprive rights, and deny the States a republican form of government.

    Ref Failing to enforce state law, and federal actions to block the states from enforcing state law, violates the Article IV Constitutional guarantee of a republican form of government: A system that has an enforcement mechanism to prosecute violations of the state law.

    The Supreme Court is the appropriate form for the State Attorney Generals to resolve this Constitutional issues. The President with others has illegally violated state law. The State Attorney Generals have no option but to protect the Constitution, the States right to a guaranteed republican form of government, and lawfully act to prevent further violations of state Constitutional guarantees. All other lawful options have failed, despite the actors having taken a federal oath 5 USC 3331 to do otherwise.

    Ref DoJ's Supremacy Arguments fail. Neither Verizon nor DoJ have credibly demonstrated that "enforcing state law" would violate the Constitution or Federal law. Rather, it is because Verizon and DoJ-NSA have violated federal law, and illegally classified evidence, that the States must prosecute state crimes committed by federal officials and contractors. Supremacy, as DoJ uses, is the supremacy of nonaccountability, and the discretion to violate the Constitution. That is not appropriate or lawful. Only a court, not the Executive, can or cannot decide whether these Constitutional issues will be confronted. The case must be submitted to the US Supreme Court.