DoJ's Keisler Conduct Substantially Consistent With Allegations In Grand Jury Indictment
This attorney work product is very low-poor quality.
Action: Send to CNET Networks (publisher of News.com) and the California First Amendment Coalition Ref these precedents, and encourage them to include the information in their amicus briefs.
The information below is consistent with the allegations outlined in the draft Grand Jury indictment. Ref
The draft Grand Jury indictment allegeges DoJ Staff Attorney illegal activity, including 5 USC 3331 violations and failure to prevent war crimes. The draft indictment may be used against Addington and current DoJ Staff attorneys and pesonnel (including Keisler and Gonzalez); and former DoJ Staff Counsel including Yoo and Viet Dinh.
This is what the Grand Jury may wish to review: Ref
The information satisifies the Congressional-Inspector General term "urgent matter," and should take the highest priority on the IG-DoJ OPR and Senate-House Judiciary Committee reviews.
The information below substantially supports probable cause to investigate allegations of illegal activity within and by current and former Department of Justice DoJ Staff attorneys and supervisors. The DoJ Staff arguments, as you will see below, have a single objective: To avoid accountability for DoJ Staff alleged involvement with, and refusal to prevent, violations of FISA, ORCON, Geneva Article 82, and 5 USC 3331.
These issues relate are important. This should trigger an immediate reporting requirement to the DoD Joint Staff and National Command Authority related to allegations of war crimes.
You are advised to proceed with caution. Do not engage in any violence or illegal activity. You are encouraged to consult with private counsel before taking any action.
The conduct discussed below is wholly consistent with a requirement for immediate action by the American Bar Association (ABA) and the District of Columbia Bar and Disciplinary System. ABA and the DC bar are encouraged to materially and substantially increase audit scope and peer reviews within the Department of Justice, and fully coordinate the reviews at a minimum with DOJ OPR, DoJ IG, and the House and Senate Ranking Leadership.
The proposed American Bar Association education process would be materially and substantially supported if indictments were issued against Keisler for his alleged involvement, and refusal to remove himself from the range of illegal conduct outlined in the draft Grand Jury indictment. Ref
The American Bar Association and DC Bar should immediately examine the details of this motion and review for evidence related to possible actionable misconduct related to the DC Bar Standards of Attorney Professional Misconduct. [Obligation of, and failure by, DoJ Staff to report evidence of peer illegal conduct to DoJ OPR, and DC Bar]
Alleged DoJ Staff Attorney involvement in illegal conduct:
Alleged Co-Conspirator
The Department of Justice DoJ's Peter D. Keisler as sworn in on 1 July 2003, more than three years ago. He has had the time to review the facts and the illegal NSA activity.
His complaint shows he has a problem comprehending simple things: The issue before us is whether there is or is not sufficient information to proceed to trial using non-classified information. Keisler has embarked on arguably irrelevant, wasteful, and wholly unproductive use of DoJ resources in arguing frivolous and wholly unrelated issues.
Supporting Material: Shows the DoJ's contentions are frivolous.
Ref DoJ AG has met with Members of Congress to (in effect) avoid investigating known illegal activity. If there was no illegal activity, DoJ AG would not be worried about war crimes liabilites, or (meaningless) efforts of Congress to immunize DoJ Staff attorneys from war crimes liabilities.
NAVY linked with AT&T on fiber optic splicing training [ Ref ], defeating any government claim that the government has or has not admitted to any relationship with AT&T on the matters of fiber optic cable splicing capabilities. The NAVY openly admits it has been trained on the AT&T system to accomplish this spliciing.
Here's how the splicing is actually done on land -- Klein's affidavit: Ref Substantially undermining the DoJ Contention that the illegal conduct is protected. Rather, the activity is illegal; and it is not permissible under ORCON to classify illegal activity.
Expert witness, J. Scott Marcus substantially confirms the merits of Klein's affidavit. Ref
See: June 22, 2006 Redacted declaration: Exhibits: July 5, 2006 A-K, Q-R, S1 S2 S3, T, V-Y
(unclear where Appendix "U" is, or if there is one)
AT&T released information related to "things DoJ says we can't talk about" [ Ref ] This fatally destroys the Government's contention that there can be no discussion on the matter: AT&T counsel has essentially confirmed (by failing to credibly discredit or deny) what was in the otherwise redacted (now released) affidavit.
Reconsider the questions Judge Walker has asked: Ref -- DoJ hasn't adequately addressed his questions, as you will see below. Judge Walker denies dismissal, discussion.
Illinois Court, denies AT&T motion to dismiss, reveals Members of Congress have been briefed on illegal things, but have not investigated as required per 5 USC 3331, their oath of office to enforce the law. Details
NJ: DoJ's points are worthless: They're legalizing classification of illegal conduct, and this is a violation of ORCON, and has nothing to to with the separation of powers or the Supremacy clause. Ref
VT Proceeding: Ref
Verizon memo.
Summary
The information below is the basis to question Keisler's suitability to practice law. As you review the arguments, you'll see a clear pattern, raising reasonable questions whether Keisler and others in the DoJ have engaged in an unlawful conspiracy to violate ORCON and allegedly engage in and refuse to prevent war crimes.
The information below is provided for your reference to expand the ongoing review of DoJ Staffers and their complicity with illegal war crimes, violations of Article 82 of Geneva, and other illegal conduct that violates the Constitution and existing FISA statutes.
It is not lawful for members of Congress to pass legislation targeting this ongoing litigation. [ Ref ] Rather than explain the illegal activity, the Attorney General has spoken with Members of Congress to avoid litigation or change the law.Ref This is additional evidence DoJ AG and his staff are violating the separation of powers doctrine, and hope to unlawfully target ongoing litigation.
The DC Bar and American Bar Association should review the DoJ Staff conduct, and question to what extent DoJ's Keisler and other named attorneys are deliberately wasting court resources and otherwise engaged in illegal conduct. At best, their approach to the issues raises reasonable questions as to their honesty, fitness to practice law, and their willingness to assert their 5 USC 3331 obligations.
Details
It's amusing and noteworthy that Keisler is invoking "separation of powers," the same man who attempted to interfere with State-level action to check the abuse of the consolidated power. 3 of 18, 2-3
What's most absurd is Keisler asserts, rightly or wrongly, that a Judge is to review the matter. 3 of 18, 3-4 Curiously, DoJ had no inclination to rely on a Judge when ignoring the FISA court. Keisler has yet to credibly explain why he has (apparently) two standards on whether the court does or does not have a role in reviewing Judicial matters. This would be an interesting thing for the (otherwise lazy) Senate Judiciary Committee to review, but for White House "rules" to only focus on irrelevant things.
Keisler absurdly states that he is "not aware" 3 of 18, 5-6 "any case" where an expert was relied upon to introduce a witness, and bypass the court. Shockingly, Keisler appears to have neglected to forget the very cases he was involved in: Guantanamo torture, Rendition, and other DoJ-coordinated efforts to do just that.
Is Keisler retarded, or does he actually believe that he can have it both ways:
We can only imagine what absurdity he will invoke while sitting on the bench. One day, he may invoke the Judicial Cannons; the next, he may ignore them. Depends on whether he feels like being consistent.
Keisler in typical Addington-Cheney fashion have invoked the phony "state secret" and "national security" argument to distract attention from the real issue: Whether litigation can or cannot proceed without reviewing classified information.
This statement is absurd:
whether the disclosure of certain information would harm national security. 3 of 18, 7-8
Keisler's got it wrong (again). The point is something quite different: Whether the trial without mentioning any classified information can successfully prevail. Judge Walker has already opined that it can. Nothing the Department Justice attorneys has provide correctly frames the debate, nor provides a reasonable basis to believe that conducting the trial would require disclosure of any classified material.
Rather, the Attorneys have, as they did in Guantanamo when assenting to illegal violations of FISA (a war crime), they're insinuating speculative consequences which have yet to be credibly argued.
Not to be lost in the matter: The DoJ with Addington's assent was the agency which ignored the FISA court. This statement is disingenuous and even if true, is meaningless:
the appropriate course is for the
Court to look to the United States to address whatever issues and questions the Court may have.3 of 18, 9-11
DoJ has yet to credibly explain why the requirements it now invokes were not previously followed. Had the DoJ Staff attorneys the first time followed the mandatory FISA court-coordination requirements, DoJ Staff would not be in the predicament they’ve created for themselves: Arguing both sides of the wrong argument.
You May Turn Your Laughing Gas On Now
Current officials of the Executive Branch are not only charged with special responsibility to protect national security, but have the particular expertise and full, current background of information as a basis on which to advise the Court.3 of 18, 11-14
The basis for this contention is meaningless dubious and questionable. First, even if the expertise were relevant (which it is not), the Court in no position to assent to one side over another.
Second, the asserted "background" is speculative and meaningless. The court has already rendered its judgment despite this fair showing and has rejected this expertise as interesting but irrelevant.
Third, for anyone in DoJ to assert that the Executive does or does not have a "special" responsibility is (apparently) missing the underlying point: The Executive despite a "special" responsibility to enforce the law has done the opposite. He has openly admitted that he didn't get the (required) warrants.
This is a perfect example of DoJ Changing the subject from whether there is or is not a violation of the law, to something irrelevant. Moreover, the court has already stated that the case can be litigated without compromising national security. Thus any assertion that the Executive is or is not an expert on something related to an issue that will not surface is meaningless.
No one outside the Executive Branch, including former officials—even ones who previously were cleared at high levels and undoubtedly remain trustworthy—possess the authority or full range of expertise to make current judgments about harms to national security.
Counsel provides no information to justify why this contention (if it were true) should be relied upon, or that it is relevant. To assert this late in the game that "someone" may be trustworthy is absurd; rather, it is, contrary to Counsel's contention", a debatable point whether they do or do not have the expertise to do what they have promised to do: Ensure the Constitution is protected.
Fatal Admission Destroys Foundation
The last thing that DoJ would want to do at this juncture (among many things) is to openly admit that, contrary to the previous assertions that there would be harm to national security, is to be inconsistent and conclude the opposite: That the information could be adequately protected.
Finally, to the extent this case proceeds, the need for additional security measures, including whether the Court should travel to Washington (as suggested by the Court, see Order at * 34), can be addressed between the Government and the Court, if necessary, as circumstances arise.3/3 of 18, 17-21
This is quite a stunning admission for Keisler to make in writing: That despite any prior contention that the case would or would not threaten national security, Keisler admits that he information could be protected, thereby comply with the dissembling requirements and protecting the information in question.
This is a fatal assertion because it directly contradicts DoJ's prior assertions that the case could not proceed in any manner because it would be impossible to disentangle the information; and that regardless the approach, the risk to national security is too high.
Clearly, DoJ has not only backtracked on their previous dubious assertions, but they've admitted to the very issues which they now seek the Appeals court to otherwise reject: Issues whether the information can or cannot be revealed (it will not), as a ruse to distract attention from the real issue: Whether the case can or cannot proceed to trial (it can).
We're only on page 3, and Keisler's not only fatally contradicted himself, but he's done nothing to justify confidence that the rest of the brief will be of any more use than a fan to cool his sweaty brow. How you liking the potential that you could be indicted for war crimes?
Given the fatal inconsistency, we need not consider the remainder of the brief. However, given DoJ likes to pick and choose, we might as well reciprocate: Pick and choose.
DoJ's assertions are not appropriate and contrary to their previous assertions to the contrary. 4 of 18, at 4
By admitting that the information could be reviewed in a classified setting, DoJ has no basis to assert that there would be any injury. [4 of 18, 5-6 ]
The hardships have not been credibly shown to tip in the Government's favor; rather, government misconduct has already tipped the scale to the advantage of the government, and the real injury relates to plaintiff's unresolved (and increasingly more likely to prevail) complaint that the government's constitutional violations are widespread without any reference to the rule of law, clearly promulgated Constitutional requirements, or clearly established rights [4 of 18, 7 ]
Taking the broad view, it is the government that chose to use non-traditional methods to self-certify without judicial review. Any pleading at this point that the government is suffering any harm is analogous to the child who has stolen bread, then complained to the nurse that they have a stomach ache for eating the stolen goods while on the run, fearful of detection.
Any contention by the government that there is a "public interest" 4 of 18, at 14 in terms only favorable to the government misses the real obligation the government has which it ahs otherwise ignored: The duty to assent to the Will of The People as expressed in FISA, which DoJ has otherwise ignored.
The "public interest" has already been ignored, violated, and otherwise given little deference. It’s disingenuous for the government, this late in the game, to reverse itself and claim (boo hoo), that its conduct is for the "public good." On the contrary, by all accounts DoJ Staff Attorneys have one objective: To avoid detection of the illegal conduct so that they do not face a subsequent disbarment trial for their failure to remove themselves from something that they knew, or should have known was illegal. DoJ Staff and the Government have a joint interest in suppressing evidence of criminal conduct, and this is at odds with their professed concern with the public.
Moreover, had their concern for the public been real, they would have openly discussed with Congress their concerns -- as they did on more than for occasions -- the limitations of FISA. What is amazing is that despite this known coordination and discussion, the government wants the public to believe that suddenly something cannot be discussed. Again, the government cannot have it both ways. Rather, the inconsistencies are more indicative of criminal conduct, contrary to the public interest.
Contrary to DoJ assertions, a stay is not warranted. 4 of 18, at 16 Rather, the request is merely more of the delaying tactics wholly inconsistent with the ram-road approach DoJ has otherwise taken on legal issues before the FISA court. Recalling that it was the FBI supervisory agent which rushed the review based on false, materially misleading information -- the time to review this matter is at hand. Any more delays serve no useful purpose. DoJ has failed to demonstrate that failing or delaying confronting these issues will accomplish anything. Moreover, DoJ has fatally admitted that even if we proceed apace, there is still a mechanism to disentangle the classified information, making the DoJ's contention -- that there needs to be a delay -- moot.
That there is a "serious" 4 of 18, at 17 question to be reviewed is not a basis to delay, but a basis to proceed.
This statement is false, and materially misleading:
further proceedings necessarily hinge on acceptance of the Court’s view that the state secrets
privilege does not prevent certain additional disclosures.4 of 18, 18-19
The proceedings do not require disclosure of any classified material; even if classified material were reviewed, this can be done without public access. Rather, this is time to disentangle the information which DoJ asserts could be done. DoJ is advised to better choose words, as opposed to choosing whether it will or will not follow the law or assent to the court. Can't have it both ways, Keisler. Remember that while you're (possibly) on the bench: The Judicial Cannons apply at all times, not when you "feel like" following them.
The problem DoJ has is that the President has already admitted to illegal conduct, and this is part of the record. Thus, the Court has already reviewed in a general matter open, fatal admissions.
Thus any claim that it is impossible to review the general matters is meaningless.
Until those questions are resolved, the United States believes
that no information can be disclosed at any “level of generality” without risking severe irreparable harm both to the Government’s position and to national security. 5 of 18, 1-3
Again, the President has already stated (fatally) that he has violated the law; and the court has (already) reviewed the matter, but the (arguably moronic war criminal) DoJ Staff attorneys have made no showing that there has been any harm to national security.
Thus to (asininely) assert that "any" review with any level of "generality" is wholly at odds with what has already occurred. DoJ merely hopes to create the phony perception that something (that has already happened) is a speculative future event; while it is actually a historical event. This is analogous to the selective choice that the RNC takes when it approaches issues of planning: A creative use on whether the notions of deadlines, plans, schedules do or do not apply.
If there is a requirement, RNC claims that it has no time; but if there is a potential consequence, RNC says it needs time to hide the evidence of wrong doing. Even if the RNC were given a clock, the DoJ Staff attorneys would argue over whether the clock was or was not a clock, and not proceed from the undebatable points: We have a Constitution, and it is the job of the DoJ Staff (as difficult as that may seem to believe) that they are to enforce the law, not create excuses to do the opposite.
DoJ then would ask that we ignore the available public information -- which makes the speculative future harm-argument meaningless -- and asks the Court to delay action until these already-decided issues occur. The harm to We the People is a direct result of the President's failure to comply with the FISA warrants.
This statement is more of the DoJ non-sense we've been given:
Indeed, where the issue on appeal concerns the disclosure of information, proceedings should be stayed until a determination is made regarding these threshold questions.5 of 18, 3-5
The threshold questions have already been decided by the President: Revelations of illegal activity have occurred, and the issue of "speculative future harm" is something that has no relationship to any decision the court does or does not make. Had the DoJ Staff been in a position to adequately, competently provide advice, they would have correctly ensured that FISA was followed, and not permit "their man" to make a fatal, open admission to the contrary.
This is what you get for voting for a man that can only win by being wired: The minute you lose contact, the small robot is likely to go astray and leave you with a bigger mess.
Again, let's review why we're really here:
IN short, the reason DoJ and the government are in a mess is because they've not followed the law and ignored the court. The only option DoJ has at this point is to invoke the "requirement" of the very entities that they've ignored:
Since the Court of Appeals may disagree with this Court’s view that the case can proceed at all, any attempt to proceed now risks the very disclosures that an appeal is intended to address and the potential harm to national security at stake— effectively destroying appellate court jurisdiction by mooting the significant issues on appeal.
The disdain DoJ and the President have shown for the court and rule of law -- by their own admissions -- makes the above assertion disingenuous. It is speculate and irrelevant that the Court f Appeals may or may not disagree with anything: The fact is that the Court of Appeals has been ignored on the original question: Whether the FISA court will or will not be respected. Had DoJ a credible position, it would not have the problem of the arrogant, stupid FBI supervisory agent that has asserted on his own that the possible FISA court disagreement would be something to be bothered with.
Rather, it was the risk that the court would disagree which was the "argument" DoJ provided to justify ignoring the court to begin with. Thus any DoJ Staff attorney that chooses to point to the "possible disagreement" as the basis to respect and delay action is wholly inconsistent with the demonstrated conduct to the Contrary: To accelerate action, move without regard to the court, and flagrantly act with a contemptuous manner before the court.
DoJ has failed to demonstrate that there are any legal questions that have to be resolved.
Rather, as to the merits of the matter being appealed, it is sufficient to show that the appeal presents serious legal questions.5 of 18, 13-14
We need not consider whether the above statement is a correct telling of the law, rather DoJ has failed to meet its burden to show that the matter is a "serious" legal question.
BY all accounts, based on the open, fatal admissions of the President, and the fatal assertion by DoJ Staff that they can handle the classification issues, there is no legal issue to be decided: DoJ admits that the issues are already open; and that the information can be disentangled. This fails to address the core issue: That no classified information need be reviewed.
DoJ fails to show that the information and issues (which have been openly admitted) are serious or substantial. Rather, by openly discussing the evidence, there is no legal question as to whether the future disclosure is or is not a substantial or serious legal matter: The disclosure has already occurred, thus there is no possible way that legal matter could be substantial or serious. Rather the legal issue is moot.
It is one thing to argue that the issues are substantial and that the disagreement is substantial. DoJ misrepresents the issue and court opinion. 5 of 18, 20
This statement is meaningless, and has already been rejected:
Beyond this, the matters at issue on appeal are of obvious weight: whether further
proceedings in this case might entail or risk the disclosure of information that would cause exceptionally grave harm to U.S. national security.5 of 18, 22-24
The matters at issue are wholly at odds with DoJ Contentions.
Rather, the simple fact is that DoJ does not want to admit that their President has already fatally admitted the essential elements, and that the issue of whether there may or may not be any harm to national security is a red herring to avoid a court review of what DoJ otherwise does not reviewed: Violations of FISA.
The President has fatally admitted to the illegal conduct, and the Attorney General has substantially admitted that there was no proper coordination with Congress. The issue before us is not the technical capability, but whether or not the illegal activity will or will not be sanctioned.
public policy forbids the maintenance of any suit in a court of justice, the trial of which would inevitably lead to the disclosure of matters 5 of 18, 26-27
If the Supreme Court position were the controlling authority -- which it is -- then the DoJ Staff has yet to explain why DoJ is not prosecuting the President for disclosures of details related to this activity. Rather than neither confirms nor deny something, this President and Attorney General have both confirmed and denied things that DoJ wants to pretend cannot be commented on.
We cannot stop the President from making fatal admissions (which he did); and DoJ cannot be stopped from admitting that information can be disentangled and protected (which it can). There's nothing here to be disclosed as new: Neither the substance of the illegal activity is novel; nor is the detailed, fatal admission something that can be retracted. Rather, we can make the adverse inference that the open admission by the President is an acknowledgement of something DoJ Staff would like to pretend is a debatable point.
DoJ Staff could have taken the other approach: Debate whether or not the nation would or would not engage in combat, thereby definitively deciding whether the US would then agree to follow or not follow the laws of war and Constitution. DoJ Staff chose not to have this debate; and despite the illegal FISA violations and other admitted-to war crimes, DoJ would like the world to believe it's a mystery. Arguably, Keisler is retarded and cannot credibly be believed. Rather, his conduct in DoJ is a disturbing indication of how he might be expected to act on the bench: With reckless disregard for requirements, and a selective choosing of whether he wants to embrace reality, facts, pseudo science, or selective interpretations of reality. This doe snot inspire public confidence that Keisler is an honorable man, but that he tends to slip in and out of honor, thereby bringing discredit upon himself and his legal peers. To this We the People are expected to remain silent, celebrate, or otherwise applaud. Get real. You are filth.
Using open information, we can prove the essential facts of the illegal activity. DoJ's problem is that it is stuck with a mess, can't get out it, and we're 90 days before the election.
Surely, if there were no criminal activity, DoJ would openly admit to the illegal conduct, and proceed on the basis of open information. DoJ wants to fight, raising in the mind of the reasonable voter the adverse inference that DoJ Staff attorneys are war criminals by negligently failed to ensure that Article 82 Geneva Requirements were implemented.
It's one thing to assert, without reference, that Plaintiff has or hasn't said something. Quite another to assert that (meaningless) phrase without linking it back to the central argument: Whether there is or is not a legal issue to be resolved.
It is incorrect to state the following:
Plaintiffs’ allegations put squarely at issue whether the United States and AT&T have a relationship pursuant to which AT&T assists the United States with respect to the intelligence activities alleged in the Complaint.
DoJ Staff makes a meaningless point:
Contrary to the Court’s view, see Order at *14, the Totten doctrine has
not been applied solely to preclude adjudication of alleged espionage agreements between the parties thereto.
Rather, the case law before us suggests the opposite:
The facts before us are clear:
Enough of generalities, let's focus on the specifics. Weinberger 6 of 18, 6-8 contrary to DoJ contention, was not an absolute bar to trial. Rather the case merely raised the question as to whether or not the essential point -- which was not known -- could or could not be mentioned. In this case, the situation is the opposite: The government has admitted the essential facts and nature of the program; then retroactively hopes to bar these revelations from trial.
Kasza 6 of 18, 10-11, by DoJ Admission, is not related to classified information but deals with other matters wholly outside the scope of this discussion. Rather, the case simply affirms that even if classified inflammation were an issue (which it is not), there are other reasons for dismissing the case. In short, DoJ has failed to adequately link any case law with the necessary hinge it said remained at issue 5 of 18, 4-5, where there is not issue and no hinge, there is no argument. DoJ's door and barrier to suit is lying on the ground, worthless, and beyond repair.
The government denies what has otherwise occurred: that there have been fatal admissions substantially confirming the legal issues.
Again, the point isn't whether there is confirmation about the classified activity, but whether the illegal activity has or has not been substantially admitted in open, non classified settings.
This is meaningless:
quite far from being free of doubt—indeed, we submit were wrongly decided.
DoJ is shifting the discussion from the illegal activity to whether there has or has not been a discussion about (irrelevant, non-probative) technical-classified details. We submit that the classified details, although interesting, and may be the subject of a Disney Movie or big David Brockenheimer Film, need not review whether the NAVY seal diverse are or are not adequately trained on how to splice an undersea AT&T fiber optic table. The public record demonstrates that the ANVY has been trained on the AT&T fiber optic cable; and the NAVY does know how to splice these cables.
This information has been openly documented, and is beyond DoJ or the President's power to deny exists.
This statement is meaningless:
The Government has never confirmed or denied a relationship with AT&T regarding the activities alleged by the Plaintiffs.
The point of the litigation is to decide whether or not the illegal activity -- which the President has admitted to -- is within the power of the court to remedy.
At this juncture, we're not discussing facts, but whether or not there is a reasonable basis to proceed with trial. DoJ's error is to argue that there are no facts. This is irrelevant. The point is that in DoJ's mind there will never be facts.
Rather, the objective at this point of the litigation is to decide whether the case can be litigated, and whether there is or is not a legal issue to decide. DoJ's problem is that it has fatally asserted that the legal issue (that they said cannot be discussed) is now substantial, indicating that the Court does have a role to play, and the case should proceed.
DoJ stupid in arguing against itself because it has violated the law, and it has no legal defense. We need only review the sentencing criteria to find that a frivolous argument on trivial matters tends to result in an upward revision of the sentence. Perhaps DoJ should find counsel that is more knowledgeable on criminal sentencing, and not rely on the foolish ones on the DoJ Staff that know little about much of anything.
DoJ is playing a game of "mystery". But what we know is that there is illegal activity, and there are two players.
How that illegal activity was implemented is irrelevant: We need only look at the results, and how the violation occurred. There are two matters:
There is nothing in FISA that requires the court to review classified material.
This statement is meaningless:
The Court’s inference of such a relationship based on general statements by AT&T describing a history of cooperation with the Government and noting that it has acted lawfully in doing so; or an acknowledgment by the Government of the mere existence of the TSP; or the prominence of AT&T as a telecommunications provider is, in our view, unfounded speculation.
In short, we have the evidence, the problem the Government has is that it cannot explain the violation of FISA so it is doing, as it did with Congress, pointing to the big, scary idea of "classified information" to hide what is illegal conduct.
ORCON prohibits the classification of illegal things. That DoJ and the White House thought "nobody would talk about it" and that "nobody would find out" is an irrelevant detail and we need not consider at this juncture the 5 USC 3331 liabilities or risk of war crimes prosecution and possible adjudication by the court: The death penalty.
In the words of Justice Roberts and Alito, the court is not bound by precedent. These are guides, not requirements. DoJ has failed to provide any explanation why the criteria they point to are mandatory, required, or relevant.
Putting aside the meaningless comments, let's focus on this: "whether actual proof necessary to decide the merits of the claims would risk or implicate the disclosure of state secrets."
Again, not to be lost on this -- what DoJ is doing is changing the argument from [a] the compliance/non-compliance with FISA, to [b] whether the classified details of the NAVY seal tapping of AT&T optical lines is or is not classified.
Even if we have thousands of NAVY seals swimming beneath the ocean tapping AT&T telephone cables, it is irrelevant to whether the President has or has not admitted:
Everything else, although interesting, exciting, and a distraction, is just that: Irrelevant to the legal issues before the court: Was there or was there not a violation of the law; and can this legal question be decided using non-classified information; and if classified information is required, can it be discussed without disclosing that classified material.
On the other side of the coin are the FISA requirements which ORCON makes no comment on. Rather, classified information is not related to the law or the compliance/non-compliance with the law; but on the technical capability. It is one thing to design a series of steps to violate the law; and quite another to have a novel technical capability which provides a battlefield advantage.
The problem in using that combat capability against American civilians is that Geneva protections are invoked: The laws governing peace apply at home; and the Constitution shall be protected and honored. Even when the Executive wants to ignore the Constitution, FISA provides a means to do just that. Yet, this Executive openly admitted he didn't get warrants.
It doesn't matter how many training classes the AT&T company has or has not provided to the NAVY on how to split the Fiber Optic Cable. The only issue is whether there is open evidence that shows there is a legal issue to be reviewed: Has there or has there not been a violation of the law.
On all accounts, we have all we need: An open admission that the law was a requirement; and an admission that that law was ignored. How the NAVY opens the top side of a submarine, and whether the submarine is at 1400 or 1600 feet is of no relevance, need not be confirmed nor denied, and ha no bearing on the core issue: Was there or was there not made public an open admission of a violation of the law.
The answer is clearly yes. DoJ's problem is that in knowing of the illegal activity, it has to create some ruse "big scary thing" to justify inaction. That's all well and good: But let your buffoon friends on the JTTF know: If you decide to screw with the Constitution and whether you are or are not going to assent to that, then you (potentially) have at your hands a population that is fully energized to rewrite the Constitution and legalize the ex post facto law on narrow issues of DoJ Staff stupidity.
It could happen. We the People do not have to work with this Congress; and nor do we have to work with This President. We could rewrite everything, to make the President a mere desk clerk who just happens to be permitted to reveal his head on Groundhog Day. Then again, someone who likes to stare out the window of the very narrow Yale school windows would probably have a hard time understanding why the laws is what it is: To prevent you from dong what you're doing: Taking a narrow view on the Constitution.
You get to choose: Are you going to cooperate, or do you want We the People to make you cooperate with something that is far more annoying. Your problem in DoJ -- and I’m talking directly to the DoJ Staff -- is that you know that we know you're full of baloney. At the very time that your Attorney General says that you were 'too busy" to get FISA warrants (oh, my an open admission), you were actually "busy" on non-official business.
This information is not a state secret. Rather, you were foolish to openly use non-classified LANS to publicly confirm what the Attorney General has otherwise lied to Congress about: Whether there was or was not a bonafide reason to ignore the law. There's no credible basis for you to assert that the "program" is classified when the ultimate objective of that activity is to violate the law. You know that. You know full well what ORCON is; and you also know that illegal activity, when detected, cannot be protected.
Your problem in DoJ is that you are arrogant, you fail to comprehend the problem you have, and you continue to deny what is confronting you:
The other problem you have is that you have no comprehension of which of your peers continues to provide this site with the information needed to pinpoint which of your IP numbers is publicly available.
How do you think this is happening?
Which of your peers is able to communicate with the outside and inform the public of which IP numbers to review, and where the probative information is?
Not to worry, nobody is talking, the is no communication, this is just a word on the screen. The FBI has not been informed. And other allied nations have not been directed to pinpoint which Rendition sites you have fully cooperated in supporting.
Wake up: You're in the middle of a war crimes investigation and you are the target: Each of the individual DoJ Staff attorneys, former and present between 2000 and 2006.
Let's consider a fatal flaw in the DoJ position:
There is at least a serious question as to whether the Court decided this fundamental threshold question properly, thus warranting further review. 7 of 18, 11-14
Put aside the generalities, one major problem with the DoJ position is the language they've cited:
The lack of less drastic options in this case is illustrated [ 776 F.2d 1236 ]
In the case of AT&T and the NSA, there are less drastic options, which the government has admitted to within this brief: [3 of 18, 17-21 ] Classified reviews can be accomplished; and no classified information need to be reviewed. That is neither drastic, nor a non-option, but a possibility.
Isn't it interesting how the DoJ points to the "passivity" of bad things happening (base do non-sense) but it is equally imbalanced in asserting that there is no possibility to address that non-issue. Here's a hint: Why not litigate using open information! What a concept.
Again, the point is that the illegal conduct can be litigated without reviewing any classified material.
Hardships 7 of 18, line 14-17
Let's review the construct that DoJ would have us embrace:
Small problem: The case DoJ has cited [Reynolds’s] has the contradiction within the text:
"It is for the court to determine whether the circumstances are appropriate for the government's assertion of the privilege against revealing military secrets, but, in making this determination, the court must do so without forcing a disclosure of the very thing the privilege is designed to protect. [345 U.S. 1 ]
In other words, to comply with the requirement to not admit, disclosure, or deny the very thing that is privileged, the court was compelled to do exactly what DoJ now complains about: "Hay, you didn't explain yourself."
Taking it one step further, by going to the appeals court, DoJ is setting the Appeals court up for a problem:
In short, to comply with privilege, the Government wants to court to explain its reasoning, thereby risking disclosure of the other (irrelevant) things.
Again, not to be lost: DoJ is shifting attention away from the FISA/violations, to an unrelated issue of how the technical details of how that illegal activity was or was not carried out. These are not relevant, and need not be revealed. Rather, the criminal conduct can be proven based on open information.
ORCON prevents classification of illegal activity.
This point is meaningless: "any such disclosure is improper." There is no need to disclose classified information; and the fact that there is a classified memo confirms that the government is interested in something that it otherwise does not want to admit.
Again, this is what we know:
Whether the technical details are or are not confirmed are irrelevant. The only issue is two things:
It is a separate matter, unrelated, irrelevant, and meaningless -- moot! -- to argue over whether the issue is or is not a state secret. It is not lawful to classify illegal conduct; and the technical nature of the activity is a separate matter from whether there have or have not been violations of FISA.
Upon reviewing the information, the court disagree with the following:
the risk is great that proceeding as the Court envisions would nonetheless indirectly confirm or deny classified facts, and thus risk the disclosure of information that the United States believes is properly privileged.
Again, if DoJ wishes to (absurdly) assert that something has to be classified, then it has to demonstrate why that activity which it wants to protect is subject to Congressional debate, open dialog, and sworn testimony in non-classified settings.
Overall, DoJ's assertions about "State secrets" although interesting, are irrelevant and meaningless. The technical details of a classified program are not the same as the legal question of [a] whether openly admitted violations of clear requirements; [b] do or do not violate the law.
DoJ is being disingenuous in the following, and fails to discuss the concern with groundless "fishing expeditions", which is not an issue when the information is openly available:
The Supreme Court reaffirmed this principle in United States v. Zolin, 491 U.S. 554, 105 L. Ed. 2d 469, 109 S. Ct. 2619 (1989). . . . Zolin was sensitive to "the burdens in camera review places upon the district courts," and refused to allow parties to force "groundless fishing expeditions" upon them. Id. at 571.
Zolin is irrelevant in that the plaintiffs have no need to go on any fishing expedition. Rather, the evidence is available in the open.
DoJ Brief fails to capture this distinction:
Courts are “not required to play with fire and chance further disclosure — inadvertent, mistaken, or even intentional — that would defeat the very purpose for which the privilege exists.” Sterling v. Tenet, 416 F.3d 338, 344 (4th Cir. 2005), cert. denied, 126 S. Ct. 1052 (2006).
Let's review the facts:
Again, the point as with Addington and Yoo: Keisler is picking and choosing from the word, but failing to capture the essential truths: That the litigation can proceed without disclosing classified technical details how the NSA physically captures data through the NAVY underwater tapping program, and does not discuss which special operations units from Ft. Bragg are dispatched; and does not disclose the times that the NAVY seals are scheduled to disembark to gain access to the facilities.
None of that is required to be discussed in open settings. The only thing we need to discuss is the open information which already shows there has been a violation of FISA.
DoJ has already agree that non-classified settings may not be appropriate, but they would be able to work in classified, secured rooms, thereby making this risk irrelevant:
The law is clear, moreover, that where the very issue on appeal is whether information should be protected, further proceedings that might disclose that information should not be conducted.
DoJ's argument presupposes that "the issue" is classified; in truth, "their issue" is that they've been caught violating the clearly established FISA and are individually at risk of subsequent litigation, and could possibly be disbarred if found guilty of FISA violations and other war crimes in re Geneva.
It appears DoJ has run out of competent counsel, and they are emotional, personally involved, and have a great risk of suffering (perhaps needed) personal consequences for their failure to comply with FISA.
The issue at this point isn't whether the information should or shouldn't be protected (it should, and has already been agreed that it should be protected) but whether the case can or cannot proceed without violating privilege (it can).
You'll notice the quote of Griffin 440 F.3d 1138 8-9 of 18, lines 24 to end, then lines 1-2 on 9 is choppy. Unfortunately, DoJ neglected to mention the [wait for it] alternative called the Perlman Rule.
[*1143] 2. The Perlman Rule
The Supreme Court's decision in Perlman v. United States, 247 U.S. 7, 38 S. Ct. 417, 62 L. Ed. 950 (1918), provides an alternative jurisdictional basis for reviewing the district court's interlocutory order. [ 440 F.3d 1138 ]
Indeed, Yale does produce some rather stupid graduates: One is in the Oval office, and now you've got to clean up his mess. Aren't you stupid: Stupid I meet Stupid II.
DoJ is neglecting the viable options, and stating that the narrow course -- that may or may not be workable -- is not workable. DoJ's problem is that it refuses to cooperate with reasonable provisions.
Putting aside the main problem (that DoJ didn't want to cooperate with FISA to begin with) it's late in the game to narrow your options to things that are not workable, and then say, "It's impossible."
Rather, it's reasonable able for the public and Senate to conclude that Keisler and his friends on the DoJ Staff are in such a tizzy, that they've got major problems:
meanwhile, at the other end of the spectrum is the real problem they have: The Supreme Court has already offered options to work through these issues, and the DoJ refuses to cooperate. You have two options: Either cooperate, or we make adverse inferences and conclude that you are recklessly in violation of the Geneva Conventions and war criminal.
Choose.
This is not believable:
Thus, the very “real possibility” exists that further proceedings would risk the disclosure of privileged information and irreparably harm the interests of the United States absent a stay of the Court’s July 20 Order pending appeal.9 of 18, 12-16
How you technically violate the law is meaningless. We need only look at two things:
That's it. DoJ has already fatally admitted that it can work with non-classified forums; and that it can take the information to a classified location. This is an option and fully consistent with the General principle of Perlman: A Supreme Court guide to ensure there are alternatives to preserve the right to litigate.
The issue is whether DoJ will be open or closed minded. War criminals, when caught, tend to be very closed minded on what is possible when it comes to accountability; but they are sure creative when it comes to matters to committing war crimes.
Come on, Kesiler! Let's have it: Be creative. You and your lackey stooges in DoJ, when you sat with Yoo, Gonzalez, Addington, Viet Dinh and the other (arguably) reckless, lazy staff attorneys in DoJ were sure creative when it came to explaining away requirements in Geneva.
Why aren't you creative when it comes to providing solutions, working with the court, and assenting to the rule of law?
Two options: US Marshalls can make you cooperate, or you can freely cooperate.
Choose.
Public Interest 9 of 18, 16-17.
The public interest at this juncture is simple: To protect the Constitution from the Godless heathens in DoJ. We are the sovereign. You are the donkeys. You are to assent to our burden. It is that simple.
DoJ falsely states the issue of the trial. The core issue is whether there can or cannot be litigation using non-classified information; and if classified information is to be reviewed, can it be reviewed without revealing a state secret.
however, there is one problem: The question is whether that state secret -- however described -- has been bonafidely classified; or whether it has been classified to hide illegal conduct.
Given that we know there's been a violation, we need not consider the issue of whether the illegal conduct has or has not bee appropriately classified (it has not). Rather, the issue is one of criminal law: Whether the Grand Jury will embark on its own to indict the DoJ Staff for war crimes.
Keep in mind, every statement you put on the records, when contrasted with the clear case law shows a state of mind which the Grand Jury may or may not consider when evaluating your conduct for purposes of sentencing. However, the Grand Jury really doesn't need to consider the potential issues of your fractured mind; the Grand Jury simply asks, "Is there a reasonable basis to indict someone; and is there more likely than not evidence that would show that someone is beyond a reasonable doubt guilty of war crime?"
Keisler's job at this point, and it is very clear from the motion, is to scramble not to act on the interest of the public, but to engage in personal defenses to avoid further Grand Jury reviews. Small problem for Keisler: he has no direct information on how the European Union is proceeding on the Rendition Case; and what information the EU has been given or has access linking Keisler (does that rhyme with weasel?) and the DoJ Staff to the CIA review of the Rendition Program: War crimes.
Just because your poodle in the White House Oval office says something is legal, it doesn’t mean that it is. Rather, the Grand Jury can decide otherwise, and a reasonable adjudicator could conclude the same.
The issue before us is whether (heil!) Keisler is mentally competent to be a Federal Judge. Do we need any more evidence to raise questions as to his mental competency? Of course, should it come to trial, he may claim incompetence; if that is the case, why do we bother letting the pond scum like him approach the bench? FISA court has been known to ban some people. Let's get Keisler on the banned list.
Enough of religion, let's get back to the case. Let's consider the following again
At issue is nothing less than the disclosure of information that might cause exceptionally grave harm to national security.9 of 18, 17-19
If there was a definitive risk of something happening, it might be interesting, but in this case it is irrelevant. The only matter is whether the case can or cannot proceed; and whether that information is or is not secret is a separate matter.
DoJ has demonstrated the following:
We are at the appeal phase, not of the case, but of the decision whether to proceed or not. We are not reviewing facts, but general parameters as to whether the case can even start.
DoJ appears to have either missed this point, or is deliberately muddying the waters. Consider the following (stupid) language:
While the Court and Plaintiffs may disagree with that assessment, it remains the matter in dispute on appeal, not only as to whether the Government can confirm or deny AT&T’s role in the allegations, but whether the very subject matter of this case implicates state secrets.9 of 18, 19-22
The issue at this phase of the litigation has nothing to do with facts or evidence. Rather, the issue is whether the trial can proceed without disclosing classified information.
Whether the government agrees or disagrees or confirms or denies AT&T's role is meaningless.
It is also irrelevant whether the subject matter is or is not a state secret. Based on what little the President and Gonzalez have already admitted, it is not lawful to classify something that is illegal. This is beyond question:
This is all that is required to prove: That the conduct -- whatever it was -- was illegal, and is thereby denied a bonafide place to invoke state secrets.
DoJ's only option is to assert that something is secret, even though it is not; and at the same time pretend that the information showing that the conduct was not legal -- thereby stripping it of protection -- cannot be discussed. This is absurd.
Rather, it's already known that the conduct is illegal; the President did not get the required warrants. Therefore, under ORCON, that activity cannot be classified; thus any DoJ Staff attorney who knows ORCON would know that the illegal conduct is not protected, and cannot be credibly asserted to be a state secret.
Now that we agree that the information has not been correctly classified, and that the objective of the classification is to hide illegal conduct, we can have a rational discussion about what to do next.
The problem DoJ has is that it cannot afford to admit what it well knows -- that it's always known that the classification was dubious, and that it knows the illegal conduct cannot hide behind any classification. This violates ORCON, and is a subsequent violation, warranting increase in Audit Scope using Generally Accepted Auditing Standards (SAS 99). Members of Congress well know, or should know, about SAS 99; those Members of Congress who refuse to increase audit scope despite the well-promulgated guidance can adversely be interpreted to be complicit in the illegal activity and inappropriate classification.
Whether the nation is or is not at war; or whether DoJ believes that invoking "national security" is the barrier to oversight, or the immunity to war crimes is irrelevant.
National security is not something that is based on DoJ-defined criteria; rather, "national security" is about asserting our oath: To preserve, protect, and defend the Constitution against domestic enemies, whether they be in the White House, Oval Office, Executive Office of the president, or on the DoJ Staff.
You do not have the power to invoke "national security" as an absolute bar to trial. Rather, "national security" is something we all need to be concerned with: have we or have we not adequately asserted out 5 USC 3331 obligations to ensure the rule of law prevails. Each of you on the DoJ Staff have taken that oath. Soon you will be lawfully investigated in public -- broadening and deepening the ongoing investigation that continues -- over your alleged conspiracy to jointly agree to, and refusal to stop, war crimes.
The time is almost up. You are not guaranteed any immunity nor can you rely on any promise. However, know the world outnumbers you. Despite you Intel Link system, blogs, and other e-mail you send through your LANS, your individual movements continue to be monitored, closely examined, and place you in considerable legal jeopardy. At issue is whether you will freely remove yourself from the illegal war crimes planning and ongoing cover-up; or whether you, individually, require your offices to be physically turned upside down by trains, competent, and lawfully appointed legal officers.
This is not a matter of conjecture, privilege, or absolute protection. Rather, Nixon reminds us that there is no absolute bar to discovery. Your offices, and your subsequent acts to destroy evidence are already known; and your involvement in the illegal war crimes planning is well comprehended. Your task is to decide whether you will continue to embarrass yourselves and your profession; or whether you will voluntarily accept that your time is running out.
Think back to Berlin in 1945. Consider what was going through the minds of those in the German Bunkers. Each of them were waging a gallant defense, doing their best, but in their gut the ultimately realized, or were forced to accept, they lost.
The same is with the DoJ. Your offices have already been penetrated. We know which of you are in the building, which are at your desks, and when you turn on your machines, and which websites you are surfing. Your stories do not add up. The problem you have is that you have a duty under the DC Bar rules to report misconduct to the DoJ OPR. It doesn't matter whether your supervisors are bullies, or that you might face retaliation from your RNC peers.
The issue you have to decide: Why do you consider people who abuse you something you want to remain loyal. That is not a question. It is a quandary that you refuse to answer: You are choosing to put your loyalty to abusive people above your loyalty to your Constitution.
You need to reconsider your choice. You are outnumbered. You remain under surveillance. The longer you wait, the worse the consequences will be. You choose to protect those who are bullies, because you do not trust the legal system. It remains a question why you are an attorney and why you chose to be a member of the Bar.
Your duty isn't to protect yourself from consequences, but to inspire the public to have confidence you can be trusted to assert your 5 USC 3331 oath, even when we are not watching. Your problem is that you do not comprehend the scope that your actions are well known. Even when we are watching you, you still defy your oath, ignore your promise, and pretend nobody will do anything.
It is not lawful to advocate violence, yet your peers say that Geneva violations are just fine; it is also not permissible to incite an insurrection, yet this is what your peers have done: Effectively thrown away the Constitution, and pretend that your malfeasance is of no consequence.
The DC Bar and Model Rules compel you to put your oath before your loyalty to your peer. You know the DoJ OPR requirements to report misconduct. The problem you have is when you knew Gonzalez was lying to Congress -- about whether you were individually busy or not busy to comply with FISA -- that is an open admission of illegal activity.
Normally, if we live in a reasonable world, that single admission should have been the end of it: The world would accept there was illegal conduct, and you would then be punished. But you and your peers choose to take the hard route. That is fine. We are fully prepared to lawfully reciprocate.
If the law, as you say it, does not protect people from Rendition -- explain: Why should the DoJ Staff not similarly be rendered?
You also claim that the detainees and alleged criminals, based on no evidence deserve to be denied attorneys: Provide no reason why your refusal to honor that oath should not also be denied to you.
Your problem is that assenting to abuses of oaths, you have a double standard: You choose to enjoy rights you say that others are not entitled. Perhaps other nations may not be as considerate with you as you have shown your peers. However, where there is a minimal requirement, it will be minimally enforced.
When you are in the Hague and thinking about things, think back to your days, and when you might have changed your mind. It will be now. You have the choice.
We mean you no physical harm. But remember, if you choose to violate the law, and the law is not respected by those who have been given power, We the People may lawfully strip you of any expectation of immunity, and lawfully ensure that you are held to account. Whether the war crimes tribunal is soon or many decades from now is meaningless. You can be hunted down. We may lawfully track you, and we may lawfully render you to a court that chooses to assert the rule of law.
Those are you choices: To voluntarily cooperate with these options; or to continue to make excuses that the issue is "something else." IN the final analysis, this is about one thing: Your integrity and whether your integrity is something you care about. From this perspective, your integrity (or lack thereof) is of no meaning to you. If so, then you should not care what the public thinks of you when the war crimes tribunal imposes judgment. Simply smile. It doesn't matter.
Neither do you.
Kasza can be a confusing case to read. You'll notice in section A, this phrase,
the court must be satisfied that under the particular circumstances of the case, "there is a reasonable danger that compulsion of the evidence will expose military matters which, in the interest of national security, should not be divulged."
This means a couple of things:
The problem with this language, as it relates to this situation, is that the government would have We the People believe that by simply asserting state secrets, the court is to roll over and accept that. This is an error. Rather, Kasza affirms the discretion of the court to disagree with the DoJ Staff, and compel the government to cooperate with lawful inquiry.
Let's consider the fundamental problem with this case: The government incorrectly contents that the case can only proceed if there is a violation of state privilege. Again, putting aside the fact that no classified information needs to be used; the core issue is whether the classified information (if it has to be used) can be dissembled (which it can). DoJ has already agreed that it is open to working in a classified setting, so this option remains a possibility, tending to raise the prospects that the trial can proceed to discovery.
Here's the problem the government presents us with:
Moreover, where courts have found that, upon an assertion of the state secrets privilege, the “greater public good” may lie in dismissal of the case, see Kasza, 133 F.3d at 1167, the public interest is best served by staying further proceedings until the Court of Appeals decides that very question.
The issues are simple:
There may be a limitation, as in a challenge, in separating classified from non-classified information, but this is not an absolute bar to trial. Rather, when we have no classified information to review, there is no issue of disentangling. [This phrase is interesting, but irrelevant: "courts recognize the inherent limitations in trying to separate classified and unclassified information" Kasza 133 F.3d 1159].
The issue before us is: What happens when the DoJ Staff knows that the classification has been dubious; and has mislead the court and the public on whether the issue has or has not been classified; or whether the issue is or is not protected. We need not consider the speculative risk that the court may have been misled; the opinion of the court is simple: It takes note of the DoJ Staff comments, but finds them unpersuasive.
That is the same as saying, "The court determines that the public good is to proceed, not delay; and that the public good is to find out why the illegal conduct has been classified, despite the DoJ Staff knowing that such a classification was not lawful." We then proceed to the issue of the DoJ Staff attorney disbarment, and other alleged crimes which would warrant the DC Bar and ABA to inject itself into the (apparently) grossly mismanaged, and poorly supervised DoJ Staff. Again, the issue is We the People know you are poorly led; and your lack of discipline clearly indicates that you cannot keep your story straight.
We need only look at your DoJ OPR requirements; and contrast that with the lack of peer reports to the DoJ OPR. You have a requirement in rewriting to do something, and you are not following that. You have a clear policy in writing that you are not following, but you cannot be trusted to assert your 5 SUC 3331 oath. That is not speculation, but a reasonable adverse inference.
Our options are simple. We can increase oversight, we can ask for assistance, and we can use other electronic surveillance to dig deeper into your illegal conduct. Based on the open evidence, it's clear that many of you know well, and have discussed your problem; and that you know there have been misstatements, but you have not complied with the reporting requirements. You cannot go back and undo what has been independently captured, and retained in locations outside your control. You're stuck.
You're not making a credible argument that the "best way" forward is to do nothing, or not review the facts. Rather, the public interest is best served by you putting your Article 82 Geneva obligations first, and ensuring you and your peers review your Geneva obligations; and that you review FISA; and that you assert your 5 USC 3331.
But you refuse to do that.
You are criminals. The public interest is highest when our Constitution has been put at risk by internal enemies within the very institutions charged to be our champions. You cannot be trusted to exercise leadership, follow rules, nor comply with freely chosen professional standards.
Rather, by assenting to "your view" of the public interest, We the People are to remain silent, not have a chance to explore the open information, and shall be barred from uttering the plain truth: Your President is a war criminal, and you freely choose to support his illegal conduct, and have engaged in a conspiracy with the Attorney General to block lawful review by DoJ OPR of your peer misconduct.
DoJ has not, as was done with Kasza demonstrate a risk of disclosure of something new, a military secret, or appropriately classified.
The problem with invoking Kasza is that the first court which reviewed the case ejected the case; the appeals court affirmed the judgment of the court.
The point is that the judicial process of initial review was affirmed. Kasza affirms the initial conclusion; now the Government wants to turn Kasza on its head, and say the court failed to do what the Kasza appeals court affirmed: Judicial discretion.
After reviewing these same declarations in camera, we agree with the district court that the Air Force properly invoked, and explained, the state secrets privilege. [ 133 F.3d 1159 ] . . . Suffice it to say that the district court could satisfy itself of the credibility of the public declarations in the course of its in camera review of classified materials, and so can we.
it is incorrect to appeal to confusion as the basis for inaction. Rather the district court, as in Kasza has rendered its judgment. There is every reason to believe, as with Kasza that the appeals court will be consistent with Kasza and accept the reasoned, informed judgment of the lower court.
But simply because the government disagree with the initial court is not basis for the government to compel the public to wait until the Government is satisfied or forced to assent to this judgment. At this juncture, the district court has already rendered its judgment, and the proper approach is to continue to cooperate with the (however inconvenient) conclusion: We shall proceed.
The government is incorrect in asserting Kasza on one point: The triggering event is not the assertion of the privilege, butt he courts concurrence or non-concurrence with that motion. [This is not an absolute bar to judicial review or judgment: "upon an assertion of the state secrets privilege" is not the triggering event to test whether the public good is or is not best served. Rather, it involves a much larger view of the matters, beyond what one party may view at 9 of 18, 24-25]
DoJ's contentions 10 of 18, 15-19 are a misstatement of the law and a gross mischaracterization. ORCON explicitly rejects any classification of illegal conduct.
The President does not have absolute power to classify things; rather, this classification, as is well understood under ORCON, to lie with the Classifying officials that may or may not be in the Executive Branch.
Rather, Members of Congress, and the DOJ Staff have a duty to remove themselves from illegal things, and recognize when activity which has not been correctly classified, and is illegal, is the subject of a bonafide criminal indictment and investigation. Whether Article 82 provisions and violations have or have not been classified is beyond the scope of this discussion; however, if DoJ Staff believe for a moment that this phony invocation of "state secrets" and "absolute power to classify" something is a uniquely Article II power of the President, you're smoking something.
This is false:
"It is well established that, under the separation of powers established by the Constitution, the Executive Branch is responsible for the protection and control of national security information.
But not to be outdone, by invoking this case, DoJ Defeats itself:
Thus, unless Congress specifically has provided otherwise [Added: As they have with FISA], courts traditionally have been reluctant to intrude upon the authority of the Executive in military and national security affairs. [ Navy v. Egan, 484 U.S. 518 ]
The arguments, points, and statements on 10 of 18, 19-24 although interesting, are meaningless when contrast with ORCON, which prohibits classification of illegal activity, as appears to be the case in re NSA and the FISA violations.
This statement is false, materially misleading, and irrelevant in that the classifying official (who may or may not be the President) has the ultimate authority on whether something is or is not classified or declassified.
Accordingly, the decision to grant or deny access to such information lies within the discretion of the Executive.
Rather, the Executive has no power to prevent review of illegal conduct; and he may not rely on ORCON which denies him the power and discretion to deny access to illegal things. Rather, it is a subsequent violation of the law and obstruction of justice to deny access to any DoJ OPR investigator to review the illegal conduct.
The following comment from a case is misleading, and has been lifted from another case: [Guillot v. Garrett, 970 F.2d 1320, "exclusive constitutional authority"] is
Actually from 453 U.S. 280, which does not use these words.
Rather, the original citation is as follows, which incorrectly cite the Haig case:
The Court reaffirmed "the generally accepted view that foreign policy [is] the province and responsibility of the Executive." Id. at 529 (quoting Haig v. Agee, 453 U.S. 280, 293-94, 69 L. Ed. 2d 640, 101 S. Ct. 2766 (1981)). It noted that "the authority to protect [national security] information falls on the President as head of the Executive Branch and as Commander in Chief." Id. at 527. And it explained that the authority to "control access" to national security information is "committed by law" to the President, "flowing primarily from [his] constitutional . . . powers . . . and existing quite apart from any [**13] explicit congressional grant." Id. Given the President's exclusive constitutional authority over access to national security information,
453 U.S. 280 does not contain the cited quote: "the authority to protect ". Rather, the phrase "information falls on the President as head of the Executive Branch and as Commander in Chief" is from the Navy v. Egan 484 U.S. 518 which reads,
The authority of the President of the United States to classify and control access to information bearing on national security and to determine whether an individual is sufficiently trustworthy to occupy a position in the Executive Branch that will give that person access to such information (1) flows primarily from the Federal Constitution's investment of power in the President, under Art II, 2, as Commander in Chief of the Army and Navy of the United States, and (2) exists apart from any explicit congressional grant; the authority to protect such national security information falls on the President as head of the Executive Branch and as Commander in Chief.
Note the above does not say that the President has the absolute power to classify illegal things; nor does the Court have no role in reviewing whether ORCON has or has not been violated when an illegal activity has been inappropriately hidden from Members of Congress, or the Courts.
Note the above is only related to whether someone is or is not individually fit to have access; but is meaningless when discussing the NSA situation. In the FISA-NSA situation of Heptin the issue of ORCON arises:
Review
As the government has presented its argument 11 of 18, 6-7 it has relied on a poorly constructed conclusion. In no way can the court opinion be interpreted as DoJ (apparently) wants the public and court to believe: That the Executive has absolute discretion and power to define what is or is not classified. Rather, this power is up to the classifying official, who may or may not be the President.
Thus any claim 11 of 18, 7-16 that there is a "separation of powers"-issue is meaningless:
In this case, the information to be reviewed is not classified; and what information is hidden is not for a bonafide purpose, but to hide illegal activity from public review, Member of Congress action, and subsequent Grand Jury indictments. This contradicts ORCON.
The fundamental problem with using this quote:
should not jeopardize the security which the privilege is meant to protect by insisting upon an examination of the evidence, even by the judge alone, in chambers.”
is that Nixon [ 418 U.S. 683 ] which fatally destroys this contention:
No case of the Court, however, has extended this high degree of deference to a President's generalized interest in confidentiality.
In Nixon, the issue was a criminal trial, but the Court acknowledged that in a civil trial there was a balancing test, not an absolute bar:
We are not here concerned with the balance between the President's generalized interest in confidentiality and the need for relevant evidence in civil litigation, nor with that between the confidentiality interest and congressional demands for information, nor with the President's interest in preserving state secrets. We address only the conflict between the President's assertion of a generalized privilege of confidentiality and the constitutional need for relevant evidence in criminal trials. [Nixon, 418 U.S. 683 ]
At this juncture, it appears as though the Executive has no real interest in protecting a specific state secret, but a rather generalized interest in protecting himself from eventual trial before the Senate. Also, the real issue is not one of Presidential power, but whether DoJ Staff attorneys are using a phony "Executive Privilege" claim to bar discovery into violation of civil rights. Regardless the to-be-discovered objective, the current classification argument, at best, is irrelevant and fails to accommodate the more likely possibility that ORCON has been ignored; and that illegal conduct has been inappropriately been classified.
Thus, any argument that an Expert cannot be appointed is simply meaningless drivel. Rather, the larger objective appears (once again) to delay fact finding; and prevent others from discovering that the illegal conduct is just that: Inappropriately classified to hide illegal conduct, and not linked with a bonafide concern with national security.
DoJ has fatally called into question it's own motives:
The rationale for this rule is that our nation's security is too important to be entrusted to the good faith and circumspection of a litigant's lawyer (whose sense of obligation to his client is likely to strain his fidelity to his pledge of secrecy) or to the coercive power of [**30] a protective order.
DoJ, as counsel to the United States is actually serving the President, not the public.
Perhaps DoJ counsel may wish to reduce to writing their 5 USC 3331 oath, and who they actually work for:
No answer from DoJ.
What DoJ has done, however, is fail (again) to consider the rest of the case:
The plaintiffs' second suggestion makes a good deal more sense. . . Next, we note that the circumstances surrounding the case certainly did not make it obvious that serious harm to national security would be likely to result from disclosure of the material at issue.
In the NSA-FISA situation, nothing classified ahs to be disclosed. Rather, the information is open; and what information exists is more likely related to an ORCON violation, and nobody could reasonably expect that illegal conduct to remain classified or protected.
DoJ cannot explain "where's the classifying officer":
It would have been nice, of course, if, in each instance, the government could have identified and produced the classifying officer who, from other records or extraordinary memory, could have testified that he classified the document on a certain day and that, in doing so, he consciously intended to classify the relevant item of information. [ Knopf, 509 F.2d 1362 ]
DoJ Makes no allowance for this approach, rather it with a broad brush sates that the issue cannot be reviewed. This is arrogance, and calls for adverse inferences to be made.
The point is simply that curious, although irrelevant, statements on whether counsel or an attorney can or cannot review material is meaningless given DoJ's refusal to assent to the language within the cases it cited: Provisions to have an intermediary review the issues, or other commentary by those who classified the material. This is closed minded, and does not suggest DoJ is serious about its duty to the Constitution, but is evidence to suggest they are more loyal to the Presidents plan to violate the law and avoid consequences for illegal conduct.
12 of 18, 1-2 DoJ makes an interesting comment that counsel could be denied access, but this doesn't address the fundamental point: Whether or not DoJ objectives to any review by anyone. DoJ has failed to link the [a] arguments about the counsel access/non-access to [b] whether the case can or cannot be litigated without reviewing any classified information.
If the program is not real, then there is no need to review any classified activity. However, because DoJ keep referring to "classified material" (that does not need to be reviewed) then we can reasonably conclude that the program -- however it exists or described -- is real, thereby destroying the DoJ Contention that to even comment on the program would confirm or deny something that cannot be acknowledged.
Again, if this claim were real, then the President and Gonzalez should have refused to comment about everything; they chose to otherwise confirm what they now want to pretend is a secret. Again, the issue of secrecy is not relevant when that illegal conduct has been classified not to protect a secret, but to avoid detection of illegal activity. (See ORCON].
12 of 18, 4 - 11 doesn't do anything to convince the public that DoJ has a strong case. Rather, it is relenting and admitting that the court will review the material, the only question is who will review the material.
Again, let's take a broad view: Plaintiffs have no need to access classified material to review the illegal conduct and prove their case. What DoJ may say has to be reviewed is irrelevant; Plaintiffs content that nothing classified has to be reviewed.
DoJ Cannot take the plaintiffs at their words and say, "There's no illegal activity; and even if we give you non-classified information you cannot win your case. Here it is."
But DoJ refuses to cooperate with the initial court ruling, but wants to waste time arguing over who will or will not get access to information that plaintiffs say they do not need to review. If only DoJ were this helpful when it came to the FISA court initial review. Bad FBI supervisory agent, bad!
This is meaningless:
As compared to the reasoned judgment of the Executive Branch, the views of an outside expert are entitled to no deference at all, however thoughtful, experienced, and trustworthy that individual may be.
If there is no illegal activity, and plaintiffs are not asking for classified information, why would DoJ be concerned whether classified information is or is not reviewed?
We judge the following:
This statement is non-sense:
Thus, the appropriate course if the Court needs assistance with addressing an assertion of the state secrets privilege is to make further inquiry of the Government regarding whatever issues of questions the Court may have.13 of 18, 9-12
We can make adverse inferences: You're in trouble, and you're throwing up a smokescreen.
The classified-related information is merely an ruse and sham to overly complicate the issue and make people think there is something "big, and secret."
Small problem: We already know:
We don’t' have to review any classified information to conclude the following:
Your story doesn't add up.
It is absurd that DoJ should say, "avoid" the Constitutional issues. 13 of 18, 24-25
This is a non-sense argument: That the Court may be able to resolve questions of classification "consultations with the Government itself." [ 14 of 18, 3-4 ]
Stillman case is irrelevant. 14 of 18, 4 - 23
Again, fatal to the government's argument is the failure to look at the non-governmental options and alternatives which DoJ refuses to consider.
Consider the long-laundry list of options before the government has any say on the matter:
Only then should it decide whether to enter an order granting Mr. Zaid access to the manuscript and, if similarly necessary, to the Government's classified pleadings and affidavits.
This is a phony argument, to invoke "separation of power" by relying on Stillman.
given the sensitivity of classified information, the risk to national security from additional disclosures, and the significant separation of powers concerns,14 of 18, 16-18
This is non-sense:
Indeed, to
our knowledge, no court considering a state secrets privilege claim has ever proposed that an
expert be cleared by the Government in order to assist the court in determining whether there
was a reasonable danger that a disclosure would harm national security.7/
The case which DoJ cited specifically mentioned such a provision, as here:
It would have been nice, of course, if, in each instance, the government could have identified and produced the classifying officer who, from other records or extraordinary memory, could have testified that he classified the document on a certain day and that, in doing so, he consciously intended to classify the relevant item of information. [ Knopf, 509 F.2d 1362 ]
Your state secrets claim is non-sense, dubious, and irrelevant: "no court considering a state secrets privilege claim". 14 of 18, 20-21
Precedents can be ignored, and created.
Indeed, to our knowledge, no court considering a state secrets privilege claim has ever proposed that an expert be cleared by the Government in order to assist the court in determining whether there was a reasonable danger that a disclosure would harm national security.7/
Does DoJ have a point? No, they're just whining. Let's get those choppers running, I'd like to get these DoJ Staffers before a competent tribunal to review the war crimes evidence.
Kasza 133 F.3d 1159
The court has found, and was not satisfied, that there was or was not an issue of danger: Nowhere do plaintiffs invoke any requirement to review classified material.
Let's consider the full quote,
Id. at 7-8 [**13] (footnotes omitted). The asserted claim of privilege is accorded the "utmost deference" and the court's review of the claim of privilege is narrow: the court must be satisfied that under the particular circumstances of the case, "there is a reasonable danger that compulsion of the evidence will expose military matters which, in the interest of national security, should not be divulged." Id. at 10; see also In Re United States, 277 U.S. App. D.C. 37, 872 F.2d 472, 475-76 (D.C. Cir. 1989).
There is no reasonable danger of classified information being disclosed when:
DoJ is in a time warp. Recall, the information has already been disclosed:
These are historical facts and known.
Yet DoJ would ask that discussion of these known facts will cause a speculative future harm. This is a dubious, speculative assertion:
The Court’s task is simply to determine if those who have expertise as to intelligence matters in the Executive Branch have articulated a reasonable basis for their position that harm would flow from disclosure. These are necessarily the kind of predictive judgments that can properly be made based on “complex political, historical, and psychological” considerations.
DoJ's arguments with respect to 471 U.S. 159 are premised on the faulty assumption that the classified information was or was no appropriately classified, but fails to consider the central issue: What is to be done when illegal conduct has been inappropriately classified.
ORCON is clear: It is not legal and is a subsequent violation of the law, to classify illegal activity or evidence of corruption, incompetence, or other conduct which warrant a Grand Jury or DOJ OPR review.
The problem with relying on this case is that the Court found:
Between 1953 and 1966, the Central Intelligence Agency (CIA) financed a research project, code-named MKULTRA, that was established to counter Soviet and Chinese advances in brainwashing and interrogation techniques. [ 471 U.S. 159 ]
Does the DoJ hope to deny the court the power to mention other illegal activity?
What is the basis for DoJ to violate ORCON, or induce Members of Congress to not review ORCON violations, or confuse the issue over whether there has or has not been a violation of ORCON?
How can DoJ credibly explain to anyone, even a comatose blogger, that the basis for your concern is anything other than a dubious claim of secrecy over matters that are illegal: Failure to comply with FISA.
DoJ Asserts the following meaningless phrase:
These are not matters given to “expert” analysis, because they are ultimately policy judgments appropriately made by those charged with the responsibility to protect national security and who have the range of information necessary to inform their judgments. [ 15 of 18, 12-16 ]
You're using non-sense. You make no sense. Your cause is lost.
Stating "any reasonably conceivable state of facts” 15 of 18, 18-19 as a basis for a decision is wholly at odds with DoJ's prior contention that nothing could be determined, and that the known facts -- that the President has admitted to violating FISA -- is something else.
Which is it?
DoJ fails to comprehend the specificity language within the case:
Accordingly, the courts should require . . .that CIA explanations justify censorship with reasonable specificity, demonstrating a logical connection between the deleted information and the reasons for classification. [ 231 U.S. App. D.C. 99 ]
This is meaningless, false, and irrelevant:
Such judgments are not matters for expert scrutiny, but are inherently within the discretion of the Executive Branch, to which great deference is due, and should be upheld if some reasoned basis supports them.
Meron was Silberman's law clerk.
The President intends to nominate Daniel Meron, of Maryland, to be General Counsel of the Department of Health and Human Services. Mr. Meron currently serves as Principal Deputy Assistant Attorney General for the Civil Division at the Department of Justice, where he previously served as Counselor and Chief of Staff. Prior to joining the Department of Justice, he served as Partner at Sidley Austin Brown & Wood, LLP. Earlier in his career, Mr. Meron was a Law Clerk for the Honorable Justice Anthony M. Kennedy, United States Supreme Court. He also served as a Law Clerk for the Honorable Laurence H. Silberman, United States Court of Appeals for the District of Columbia Circuit. Mr. Meron received his bachelor's degree and his JD from Harvard University. [Ref ]
Judge Silberman has previously served as Co-Chairman of the Commission on the Intelligence Capabilities of the United States Regarding Weapons of Mass Destruction, and on the Foreign Intelligence Surveillance Court of Review.16 of 18, 17-20
Honorable Laurence H. Silberman is not a disinterested party. His law clear previously worked for the Department of Justice.
Please find someone else.
Thanks for visiting.
posted by Constant @ 8:10 AM
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