DoJ's Keisler Feigns Ignorance On Matter Personally Involved

DoJ Asst Attorney General filed a motion claiming lack of knowledge of a case establishing a general rule permitting review of classified information.

Small problem: Keisler filed motions in 2005 in a case that permitted review of classified information. The case involved the review of sensitive privacy-related information.

DoJ OPR and the Congress should carefully reconsider Keisler's statements and has lack of comprehension or awareness. The public should consider the information and review the DoJ Staff motivation behind the Multi-Jurisdication litigatin [MDL]. It appears that even if the NSA litigation were conslidated, the public would not enjoy the benefit of efficiency. Keisler's demonsrated that despite beiing on both cases he apparently is incapable of translating information from one case to apply this to another.

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The issues for Members of Congress and the DOJ OPR to review include:

A. Adequacy of the original DoJ Kisler inputs to the 2005 memoranda;

B. Adequacy of the DoJ Staff law Clerk review;

C. Basis for the US Attorney to make a decision to intervene.

The results are somewhat telling. On the surface of it, it appears as though DoJ Staff are not sufficiently briefed on the cases that they are involved.

In theory, a core principle -- Supremacy -- if it were relevant, valid, and bonafide, should have been consistently argued. However, the fact that the principle took center stage, yet the facts of the case and court opitions seem lost, suggest we have the opposite: That the basis for the DoJ argument isn't a core principle, but the assertion of power regardless the debatable facts or principles asserted.

DoJ Staff has moved on the basis of politically driven agendas. The DoJ Staff has applied templates without giving much considertion whether those documents are something the DOJ Staff or Asst Attorney Gereral, Keisler in this case, is sufficiently up to speed on the matters.

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FISA In General

1. FISA is a federally recognized statute. The objective of FISA is to review classfied information. FISA governs how people will or will not be monitored; and when it is or is not appropriate to intrude into people's privacy.

2. The FISA applies to law enforcement, military operations, and other things where US citizens are involved. FISA does not apply when the US is exclusively working abroad collecting Signals Intelligence; FISA does apply when the NSA is working with local law enforcement to gather intelligence against US citizens.

Keisler Involvement

3. Keisler is involved in the NSA litigation. Claim:

We are not aware of any case involving the state secrets privilege in which an expert was appointed to assist the Court in addressing the central question to be decided—whether the disclosure of certain information would harm national security.3 of 18, 5-

4. Keisler involved in Child Case in Philadelphia. Child Ruling: Keisler involved in filing on the Philadelphia cases.

5. Linking Keisler's comments in 2005, to the broader litigation against guns, establishing the case in New York, and its relationship as precedent for the case in Philadelphia. New York case status:

The case of NAACP v. Accusport Inc. et al., was also before Judge Weinstein, resulting in an important decision on July 21, 2003.Ref

6. NY District Court precedent [ 216 F. Supp. 2d 59 ]

[Reformated to assist with reading]

Appointment of a special master to assist the experts and the court is desirable. Daniel Dockery, clerk to the judge before whom the matter is pending, is appointed special master. Fed. R. Civ. P. 53. He is directed to assist the parties and BATF to identify with [**8] specificity:
1) what information BATF maintains;
2) what is the current scheme employed by BATF to organize information into modules, tables, and elements;
3) which data elements plaintiff's experts reasonably expect will be required for the preparation of evidence for trial;
4) which data elements defendant's experts reasonably expect will be required for the preparation of evidence for trial;
5) of the data elements that at least one side requires, which elements would, if revealed, pose a threat to effective law enforcement operations or any individual's legitimate privacy interest;
6) what confidentiality or protective safeguards would alleviate identified law enforcement or privacy concerns; and
7) of the data elements that at least one side requires, which elements are privileged and should not be ordered disclosed regardless of safeguards.

The court recognizes [*62] that the views of the parties, particularly defendants, may change as the case develops.

Note the above does the following:

A. Identifies a judicial non-excutive official to conduct the reivew;

B. Directs that non-esecutive officer make findings of fact of what will or will not be appropriate to reveal [At 6 and 7].

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Subsequently, the court approved the final special master reoprt.

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Curiosly, when we contrast the above -- related to the case Keisler was involved, and should have been aware -- with the AT&T litigation.

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Discussion

State secrets priviledge was asserted in re BATF, so the is relevant. Both the BATF and NSA are both involved in gathering senstive information. The BATF is under the US Government, is a federla agency, and is part of the law enforcement Community. Also, recall that the FBI and other federal agents do appear before the FISA court.

The court directed that the special master review the information. Keisler's concern in re NSA-AT&T: "whether the disclosure of certain information would harm national security".

Let's consider Keisler's assertion -- that he and others in the DOJ, despite their invovlement in the BATF case -- were unaware of any case where someone was appointed to review, "whether the disclosure of certain information would harm national security."

Let's compare the Keisler assertion in re NSA-AT&T, and contrast this with the order of the court:

A. Keisler COmment:

We are not aware of any case involving the state secrets privilege in which an expert was appointed to assist the Court in addressing the central question to be decided—whether the disclosure of certain information would harm national security.3 of 18, 5-

B. Order of Court

1) what information BATF maintains;
2) what is the current scheme employed by BATF to organize information into modules, tables, and elements;
3) which data elements plaintiff's experts reasonably expect will be required for the preparation of evidence for trial;
4) which data elements defendant's experts reasonably expect will be required for the preparation of evidence for trial;
5) of the data elements that at least one side requires, which elements would, if revealed, pose a threat to effective law enforcement operations or any individual's legitimate privacy interest;
6) what confidentiality or protective safeguards would alleviate identified law enforcement or privacy concerns; and
7) of the data elements that at least one side requires, which elements are privileged and should not be ordered disclosed regardless of safeguards.

Let's presume Keisler was aware of the above case, and distinguished it. The only way he could separate the two, and conclude that the BATF special master was not an issue of national security was if the following assumptions about the BATF and NSA were true.

Keisler would have to argue, if the special master activity was not related to national security:

Privacy of personal informatin is unrelated to national security issues;

Confidentiality of information is wholly disconnected from issues of national security;

Law enforcement is not the same as national seecurity, in that there are two rules.

Indeed, this is exactly the problem!

It doesn't matter what the nature of th eactivity is: The acdtivity must comply with the law. The decision in 2001 was to wage war, not engage in law enforcement. DoJ's approach, as with FISA, was to assert that Geneva did not apply.

DoJ has violated the law, refused to stop vilations, and rather than admit that there have been violations of the very things which triggered the FISA act -- violations of privacy -- DoJ's approach has been to reshape the violations into something that cannot be reviewed.

Yet, we know the violation has occurred. The illegal activity has nothing to do with a victim or a defendant, but two simple things:

A. What was the FISA requirement: Get a warrant;

B. What did the government do: Not get the required warrants.

DoJ knows that it cannot defend its position, so it is changing the discussion into something that, DoJ incorrectly bleieves, cannot be discussed.

The problem is that state secrets is not absolute. Moreover, it is illegal to classify evidence of criminal activity.

In otherwords, given DoJ has no defendable position, the only option Keisler has is to pretend that the legal issue cannot be reviewed, or that it is different than anything else.

yet, the basic pricinple is:

A. Illegal activity may not be classified;

B. The government opreations, however they are described, have to follow the law;

C. State secrets and exeucive privilcge claims are not aboslute;

In the NSA-AT&T case, there is no need to look at any classified information. We can appoint a special master to separate the confidential informatiion from the evidence.

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Let's turn the issue on its head: If, as Keisler and others in DoJ argue, that there is a difference between "national security" and "privacy requirements", then we have to accept the notion:

A. Applying the 14th Amendment: DoJ Staff counsel are not entitled to privacy protectios, because they argue that this protection cannot be discussed, and cannot be enforced when other citizens provacy rights are violated. We cannot permit only some citizens -- including DoJ Staff -- to be protected, while other citizens have their rigths denied. Thus, if DoJ Staff say that the violations cannot be adjudicated against some, then DoJ Staff also have not basis for complaining when their privacy rights are individually violated; and

B.

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These distinguishing elements bewteen the NSA and BATF shed light on how the DOJ is approaching the matter. Notice they've shifted the attention from the FISA Court issues -- as they relate to law enforcement, and FBI supervisory agents -- to the mysterious thing of "national security."

What DoJ is doing is hoping to create verbal armor. Rather than explain the real issues, they're hiding it.

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Judgements

DoJ's goal is not to expedite anything. They hope to delay action so that other legislation can target the ongoing litigation. Yet, even if DOJ delays subpoenas, the cases have already been started, preventing Congress from affecting this litigation.

Rather, it appears DoJ hopes to avoid broader litigation, above and beyond FISA, and thwart any liability against individual Executive Brach pesonnel for 42 USC 1983 caims.