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Wednesday, August 02, 2006

NSA: Draft Grand Jury Indictment DoJ Keilser (Alleged 5 USC 3331 violations, Obstruction)

Peter D. Keisler's complaint against officials in New Jersey amounts to alleged obstruction of justice and should be the basis for the public to review his conduct for possible disbarment.

Basis for Indictment: Nuremburg -- US Attorney and DoJ Staff can be indicted for illegal conduct [ German Prosecutors, legal counsel, and court officials who failed to enforce the law and permitted violations of the law had committed war crimes. ]

* * *

Authorities: Ref

Special Duties of Prosecutors: Ref

DC Bar Discipline: Ref

* * *

Clarification: 18 USC 1001 only applies to testimony; and is not applicable to judicial filings. See USC 1001(b)

* * *

Allegations Against Keisler and US Attorney

Count 1: Issuing an Indictment known not to be supported by probable cause. Ref

Count 2: Allowing subordinate DoJ attorneys to make statements to the media for the purposes of affecting ongoing litigation outcomes. Ref

Count 3: Failing to comply with Mandatory DoJ OPR reporting requirements. Ref

Count 4: Being in a position to know, and failing to report evidence to DoJ OPR the DoJ AG has mislead Congress. Contrary to DoJ AG assertions, DoJ Staff was not, and they individually know they were not, busy at the time that the FISA warrant requirement was in place. Rather, the DoJ Staff was working on nonofficial activities, and this evidence is publicly available, not protected, open, not classified, and does not enjoy any privilege. DoJ Staff knew the DoJ AG has mislead Congress; the misconduct is a breach of the Attorney General’s oath, and is a serious violation of Federal Law amounting to false statements to Congress. The DoJ Staff knows, or should know, that the Attorney General has engaged in this and other illegal behavior, but has failed to report this misconduct. Ref Ref Ref

Count 5: Failing to withdraw from illegal activity, thereby assisting and engaging in illegal activity. Ref ["the lawyer must withdraw if the client refuses to rectify the problem"]

Count 6: Inducing DoJ Staff peers to engage in misconduct Ref

Count 7: Assisting DoJ Staff officials, DoJ Attorney General, and other to be-named alleged co-conspirators in violating their duties to enforce the law Ref

Count 8: Actually using, not just threatening, prosecution to gain advantage for DoJ Attorney General, The President, and DoJ Staff peers in expected civil litigation related to violations of FISA and Geneva. Ref

* * *

Recall the previous information showing state-level findings of fact cannot be thrown out by Federal Court:

Recall, DoJ wants the complaints against the government consolidated; meanwhile, DoJ is now suing those who are trying to enforce the law, thereby doing exactly the opposite of what DoJ "wants": Creating more lawsuits that are not consolidated.

The language in the Vermont letter was close to the NJ letter. Ref Suit against NJ

Action: Send you voice of Support to the NJ and VT governor and public service commission.

* * *

It’s important to review the DoJ complaint against NJ and other states in light of what we know from Hepting

Major points on NJ complaint:

1. It's not lawful to classify illegal activity, so the Government's claims that this is a "classified program" are irrelevant. The activity is illegal, and the classification violations are a subsequent violation on DoJ. See ORCON.

2. The US is not in the position to block action by any official to enforce the US Constitution.

3. The existence of the illegal activity and other inappropriately classified information has already been affirmed by the Walker Court as being appropriate for discovery, and the government's claims of state secrets have been rejected. Ref

4. The DoJ has no power to enforce any law or action which violates the Constitution, so the Supremacy Clause is meaningless and irrelevant. DoJ Claims that there are "supremacy clause issues" is merely non-sense; no Federal statute related to discovery, investigation, and enforcement of rights may prevent enforcement of the law. [See 5 USC 3331] [ Congress and the DoJ Staff attorneys are "equally responsive to ensure that the law is followed." Terkel Ref, denying motion to dismiss suit against AT&T, giving leave to amend complaint. ]

5. Any claims that there is a "separation of powers"-issue is meaningless. State officials have an oath of office to the US Constitution, which trumps DoJ efforts to violate the law.

6. DoJ is in the position of both acting to ensure AT&T and Verizon does not reveal information (by suing them), and also acting to work with AT&T to block discovery. AT&T and DoJ are on both sides of the argument, creating an issue for the Court to untangle.

7. Fatal to the DoJ contention is the Verizon memo which confirms the existence of the illegal activity. Page 3 of 7, para 1/note 4. Judge Walker has rejected the absolute shield, and denied the government's motion to dismiss. Verizon has not, as it asserted, denied that other firms have or have not turned over Verizon data.

8. Further, at para 3 of the Verizon letter, it is false to state that inappropriately classified information related to illegal activity is protected or can be enforced. Rather, ORCON states that illegal activity cannot be classified. It is a violation of the law to classify illegal activity; agreeing to remains silent about illegal activity does not immunize anyone to liability for having cooperated with activity one should know is illegal and violates the Constitution.

9. Simply invoking privilege does not mean that that privilege will recognized, as the court has rejected and refused to do so in the EFF litigation. The Walker court denied the motion of the government to invoke privilege. DoJ's rationale has been rejected by the court, and Verizon may not rely on the DoJ language which the courts have otherwise said is irrelevant.

10. Given there is no legal basis to refuse questions, there is nothing that would lawfully permit DoJ or the telephone companies from refusing to respond to lawful subpoenas. It is appropriate that the states continue to question DoJ Staffers, especially given the DoJ state-level efforts to invoke phony legal arguments to hide illegal conduct.

11. It is questionable that a particular company has or has not reasonably relied on a "good faith" claim that they have or have not complied with what appears to be a violation of FISA, especially where DoJ has refused to seek and obtain the required warrants. [See Quest declaration]

12. Failure to investigate illegal activity, although on itself is not a crime, a refusal to assert ones oath of office is actionable and can be used to assess one's interest in asserting their oath of office. The issues are well within the state level agency review. Given DoJ and the States are not able to resolve this issue, the only appropriate way is for the courts to review the matter, and deny the DoJ the power to continue asserting privileges the Walker court has otherwise rejected.

13. When conducting domestic surveillance, the President may not violate the law. It is irrelevant whether the DoJ and phone companies agree or disagree that the NSA illegal activity is or is not related to foreign affairs.

14. State level entities have jurisdiction when the Federal government refuses to enforce the law, or other wise jeopardizes State guarantees of a republican form of government (that ensures warrants are issued).

15. There is every reason to explore whether the phone companies and the Department of Justice and others have or have not violated the law. Whether the individual actors fail to comprehend the issue of illegally classifying illegal conduct is irrelevant.

16. The surveillance statutes cannot be ignored; and state level action, when faced with malfeasance by Members of Congress and DoJ Staffers, is the only lawful remedy to ensure the State's Guaranteed right Constitutional to a Republican form of government. Madison in Federalist 10, reminds us where there is a right, there is a remedy. DoJ has no legal standing to deny the states their lawful standing to seek a remedy; it is a separate matter whether that remedy is or is not agreeable to the DoJ.

17. It is false and incorrect to suggest that the ineffectual Congress is the more appropriate forum to review these matters. Rather, it is not constitutional for Members of Congress to pass legislation that would otherwise target this ongoing litigation. DoJ's problem is that by bringing suit against the state, it then bars the Congress from intervening on that ongoing litigation. The only option DoJ has to permit Congress to take action on this narrow matter of the state review is to withdraw their complaint from federal court, and then work with Congress to narrowly define language that would otherwise not affect any pending state-level action against the US government and telephone companies.

* * *

Let's return to the DoJ Complaint against NJ 4 of 14

It is irrelevant and misleading for the DoJ Staff attorneys and the US Attorney to have asserted in writing that the Federal Government has exclusive control over FISA enforcement. The issue before is a different matter: One of state-level privacy rights. Further, in those situations whether the Federal Government refuses to enforce the law, it is incumbent upon the states to enforce Federally protected rights.

It is clearly established in Bivens and through 42 USC 1983 that state-level citizens have the power to use the Federal Courts to enforce rights; and that the Federal Government may not lawfully interfere with fact finding or efforts to enforce the law or seek discovery.

Also, it is a Brady violation for DoJ Staff attorney Keisler and his alleged co-conspirators in the Department of Justice to deny the public access to information that will be probative. Keisler knows, or should know, that it is not lawful to classify illegal activity. It is a violation of his professional standards of conduct to engage in illegal activity, or prevent violations of the law. Keisler has allegedly violated the Model Rules and the DC Bar should review this pattern of alleged intimidation and efforts by DoJ Staffers to obstruct justice.

Keisler's legal arguments are frivolous, and disconnected from clearly established law. His legal conduct and work product are not lawfully enforceable, nor are they credible representations of enforceable law.

IT is false, and Keisler should know this is false, for anyone to assert that the Government has control over "illegally classified information." Rather, this is information that should be presented to a Grand Jury, and at a minimum investigated by the DoJ OPR. The President has otherwise thwarted this review, placing the states in an ongoing position of having their Constitutionally protected guarantee to a republican form of government both denied and undermined. This is a subsequent violation which Keisler knew, or should know is contrary to his 5 USC 3331 oath of office and duties under the Model Rules of Professional Conduct, as administrated and enforced by the DC Bar disciplinary board.

Contrary to Keisler's assertions 4 of 14, at 14 that the President or Federal Government controls has issues and matters related to foreign affairs, the issues before us relate to domestic matters, which Youngstown recognizes puts the President's power at its lowest point.

That the President may "control" something is speculative. Rather, under this Separation of Powers, the President and Congress jointly share power related to matters of military. Congress has the exclusive power to make rules like FISA which directly regulate the NSA conduct. No court has overturned FISA.

Although interesting and somewhat dramatic with language, Keisler's reference to war powers is meaningless when it comes the State-level obligation of the President to ensure that the Constitution and all laws are faithfully enforced. That the President has been poorly advised, or otherwise has embarked on illegal campaigns is of little relevance or bearing.

Keisler 4 of 14, at 15-16 fails to cite any language which trumps the Constitution, a requirement like Geneva which Hamdan affirms must be followed.

Fatal TO Keisler's argument -- that because the nation is at war, the President may do or not do things -- is the parallel protection of Geneva which applies to US citizens. Keisler cannot pick and choose whether we are or are not at war; or whether Geneva does or does not apply. Either

  • The US is at war, and Geneva protections applies to US citizens as they related to abuse of rights and fundamental law; OR

  • The US is not at war, and the FISA requirements remain in full force. Either way, FISA is the governing language whether we are or are not at war.

    * * *

    Keisler has not credible basis to assert that a "source and method" of gathering intelligence can be protected when those methods are not legal, and defy domestic law. The US is not a battleground, and the President may not wage war against Americans ignoring the law and targeting them with illegal systems.

    It is irrelevant what Keisler says about Federal law divulging classified information. For that information to be protected it has to be lawfully classified. It is not lawful for DoJ to engage in prior restrain to block anyone from discussing illegal information, or activity which has been illegally classified contrary to the requirements under ORCON.

    Kiesler's statement 4 of 14, at 17 does not bar discussion of illegal activity. Nowhere has Keisler adequately explained the Terkle finding which rejected the Government’s contention of state secrets. It is not lawful for the DoJ Staff to prohibit anyone from making a truthful report of illegal activity; and it is not enforceable for DoJ to threaten anyone with prosecution for engaging in Constitutionally protected speech. Keisler's conduct would amount to an illegal threat of prosecution, which is a subsequent violation of his oath and a reportable violation to the DoJ OPR. It is not lawful for DoJ to suggest, imply, or otherwise leave the impression that citizens’ discussion the illegal NSA activity could be prosecuted.

    * * *

    The President is not the classifying official, and he has no power to classify illegal conduct. The President has not power to decide who will or will not receive information related to illegal activity; and the President may not compel anyone to agree or not to agree to comply with provisions which are not lawful.

    The NSA may not violate the law. When the NSA does violate the law, they may not compel anyone to agree to remain silent about that activity. NSA is not a magic entity that nobody can talk about. It is a creature of the Congress and federal law; and must comply with the law. It is not a monolith upon a mount, but a creature which must assent to the law.

    That the NSA is not required to disclose lawfully classified in formation 5 of 14 at 18 is a separate matter from this case. The facts before us, as recognized by Hepting, is that there is no bonafide claim of state secrets. Thus, any concern that the NSA may or may not be the subject of these discussions is irrelevant. Rather, these are matters of public interest and protected by the 1st Amendment, which bars anyone from denying anyone the right to speak on matters of public interest when those matters related to a discussion of illegal conduct and other behavior that violates the Model Rues.

    * * *

    It is interesting, but meaningless for Keisler to reference Executive Orders as constraints on communication related to illegal activity. 5 of 14 at 19 DoJ OPR is also under orders to investigate attorney misconduct; and Keisler appears to have violated his oath of office by not reporting as required under the DC Bar his knowledge that the Attorney General has violated the law and otherwise made misleading statements to Congress.

    * * *

    Kesiler 5 of 14, at 19 well knows the ORCON requirements outlined in the cited material. He is allegedly reckless in knowing that illegal information cannot be classified; but is apparently denying others the access to gather information related to that illegal activity.

    IT is irrelevant that he President has ignored these requirements, or he has self-asserted that he can or cannot classify something. The Joint Requirements Oversight Council in DoJ has well recognized the FISA warrant requirements, but Keisler and others on the DoJ Staff are not interested in resolving this problem. Rather, they have continued to openly discuss irrelevant classification guides which the JROC otherwise complied with.

    "Access to classified information," 5 of 14 at 20 although an interesting discussion, is meaningless when that information is illegally classified.

    Moreover, the discussion over classified information is a red herring. The only issue before us is twofold:

  • A. What did FISA require; and

  • B. Did NSA and the president follow or ignore FISA.

    Both can be proven without reference to classified material. Thus any discussion over whether or not there has or has not been a violation of the law is an issue for the court to consider narrowly.

    Once there is a determination that there has been a violation the law, the next step is to assess whether the information related to that illegal activity has been illegally classified.

    Again, we have all the information wee need:

  • The President has admitted, as Verizon admits at Note 4, that there is a program;

  • The President admits the activity did not get warrants.

    Thus, any discussion related to classification of that illegal activity is irrelevant. The correct approach is not to focus on whether the NSA activity is or is not illegal (which it is), but to take the broader view of what DOJ hopes: To classify the discussion of that illegal activity.

    Nobody is saying that the NSA technical details of how they splice the AT&T fiber optic cable need to be proven; nor will there be a requirement to disclose how the NAVY accesses AT&T cables off the United States coast.

    Rather, the only issue is: Once we determine that the conduct is illegal, we conclude as Keisler knows or should know, that the conduct has been illegally classified.

    Thus, any discussion 5 of 14 at para (1), (2), or (3) with respect to "need to know" is irrelevant. Once information is illegally classified, it is lawful to talk about the illegal activity.

    Rather, DoJ's problem is that it has failed to demonstrate to the court in Terkel that the subject matter cannot be litigated, or is beyond discovery. Again, not to be lost -- no lawfully classified information has to be reviewed to conclude:

  • DoJ is illegally obstructing state level investigations;

  • DoJ is harming public confidence in the Constitution

  • DoJ is failing to ensure the laws are followed

  • DOJ is failing to investigate violations of the DC Bar rules

  • DoJ is not correctly ensuring the Constitution is enforced

  • DoJ Staffers like Kreisler are not lawfully complying with their 5 USC 3331 obligation to ensure the US Constitution is protected.

    * * *

    Once information can be reformatted, and illegal activity disclosed, that illegal conduct cannot be matter of state secret. Rather, it is the obligation of Members of Congress to enforce the law. [See Terkle, Kennelly opinion, Illinois, page 39].

    It is not lawful for the DoJ Staff to suggest that someone security clearance may be denied if they truthfully report illegal activity, or conduct that relates to illegally classified activity.

    Those who are granted the right to review classified information also have a higher duty to the US Constitution to ensure that the 4th Amendment and FISA is enforced, not explained away. No Executive order may trump the constitution; nor may the President impose a gag order on discussing illegal activity.

    The provisions listed on page 6 of 14 although interesting, are meaningless and we need not trouble ourselves with potential violations of security laws. Rather, the larger issue is DoJ Staff knowledge that their peers have invoked phony gag orders and used other intimidation to keep NSA contractors silent about conduct that otherwise violate the law.

    It is not lawful for moneys to be expended under Article I Section 9 for illegal things. Keisler cannot explain how Members of Congress have been inducted by DOJ Staff to remain silent about the illegal conduct; yet there is no DoJ OPR review of the illegal activity; while at the same time DOJ IG has been denied the unfettered access to review all NSA-related payments which are clearly illegal, while they conduct this illegal monitoring.

    * * *

    No doctrine which Keisler points to 6 of 14 at 22 trumps the US constitution. Keisler cannot point to any doctrine that mandates silence about illegal activity; nor does any Court recognize any rule which relate to this dispute. Whether federal law is or is not supreme is irrelevant. The only issue the States need to be concerned with is: Whether there has or has not been a violation of that law, and whether the States want to take action when Congress refuses to act.

    Keisler fails to show how DoJ Staff attorney malfeasance and reckless disregard for the FISA statute is something that should be assented to. Moreover, there's nothing in the case law that compels anyone to continue to remain silent, not investigate, or otherwise not gather facts related to illegal conduct. Rather, it is a DoJ OPR issue for subsequent review, when DoJ Staff have invoked a phony supremacy doctrine that otherwise is meaningless when it relates to State-level power to gather information related to criminal conduct within their state.

    The issue with supremacy is also nuanced. This relates to how investigations are conducted. Where the federal government has primary jurisdiction, and there are going to investigate, then that State may fall under that result. However, the instant case is different: The President has done the opposite and blocked federal reviews of what Keisler otherwise says is a Federal Matter. Where the states are denied Federal Protection, they may take lawful action to ensure the laws are followed.

    * * *

    Keisler assertions 6 of 14 at 22 [ that "suits alleging secret espionage agreements
    with the United States are not justiciable" ] are a mischaracterization of the legal issue: Whether or not the States will or will not enforce violations of the law when the Federal government refuses to follow, enforce, or otherwise ensure the law is enforced. All State official take an oath to the US Constitution; their failure to act could be considered a basis to bring suit.

    It may be true that there is an illegal agreement which is not enforceable.

    * * *

    Keisler's contention 6 of 14 at 23 [ "Federal Government also has an absolute privilege to protect military and state secrets from disclosure" ] is an incorrect statement of privilege. Only lawfully classified information can be protected; and it is another violation of ORCON to illegally classify information related to illegal activity, as is the case here. Putting aside this misstatement, Terkel denied the government’s motion to dismiss, and wholly rejected the State secrets privilege claim. Thus, the "State secrets privilege"-claim (again meaningless) is of no consequence and need not be considered relevant.

    * * *

    6 of 14 at 24 It is incorrect to link the NSA illegal activity to the events of Sept 2001. The NSA capability was already tested prior to Sept 2001; and the President did engage in illegal activity prior to Sept 2001. This illegal activity created a Title 50 reporting requirement to report to Congress the illegal activity. The President failed to comply with this requirement.

    IT remains a matter of fact whether the NSA illegal collection was narrowly targeted, or as it appears to be, broadly targeted at many phone numbers. It appears as though the NSA had a list of many phone numbers which NSA and DoJ personnel then listened to without warrants, a subsequent violation. This was not consistent with FISA. Rather, there was no certainty that the targets were or were not actually reasonably linked with AlQueda.

    Contrary to assertions at 6 of 14 at 25 that there was one person who was connected, the evidence suggests the opposite:

  • There was no reasonable basis to conclude one party was or was not with AlQueda;

  • There was no reasonable basis to conclude a warrants was not required;

  • Even if the above are rejected, the AG failed to comply with the time requirement to retroactively secure a warrant.

    Again, we need not discuss the technical, classified details as the Attorney General has openly admitted that as of 2006, he still had not complied with the warrant requirement. It is irrelevant whether the conditions do or do not related to wartime timeframes or provisions: We are well beyond the time window when warrants would still have to be secured and remain consistent with FISA.

    * * *

    It is irrelevant, and remains a matter of speculation what the true nature of the alleged program is or is not; nor does it matter whether the program has or has not been successful. The only issue of interest is:

  • A. What was the FISA requirement

  • B. Was there a violation

    It doesn't matter what the objective of the surveillance is: FISA requires warrants even during wartime within specific deadlines. It is meaningless to point to Sept 2001 events of what the illegal activity may or may not hope to achieve; the law is clear, and this President and Keisler know the FISA requirements have not been followed.

    As evidence of the DOJ Staff knowledge of the illegal conduct is the subsequent effort by Senator Specter to change the statutes and targeting pending litigation: These confirm:

  • A. The Congress and DoJ both know there have been violations

  • B. They hope to change the law to avoid consequences

  • C> They are jointly agreeing to draft language that unconstitutionally usurps Article III powers

    * * *

    It is 7 of 14 at 30 Hepting Court rejected the state secrets claim; and Terkle [Kennelly, Illinois] has declined to dismiss the suit against AT&T. It is irrelevant that a privilege has been invoked; that privilege has to be recognized. It is meaningless what DoJ says the NSA director may or may not have done with respect to this privilege claim [7 of 14 at 30].

    * * *

    Let's review: DoJ has one goal -- to avoid sanctions for FISA violations. We can rely on open information to show there has been illegal activity; and that illegally activity ahs been illegally classified.

    It is meaningless what the NSA director says the program is or is not doing. The only issue is whether the FISA was or was not violated (which it was). It is clear that there is no requirement to review any classified information to make these judgments.

    NSA assertions that we may or may not discuss technical details is a red herring from the central issue: Was there a violation of FISA. There is no need to disclose classified information.

    Rather, NSA has illegally usurped Judicial branch power by asserting that a discussion of illegal activity would violate the law; in fact, the NSA director has not been given judicial power to decide whether or not this is the case.

    Whether the disclosure of non-needed information may or may not cause harm is meaningless; the issue is whether despite the known, public information the US can expect to prevent discovery and fact finding by the states on matters related to illegal US Government conduct within their state.

    The court does not agree that litigation would compel disclosure of legally classified information. 8 of 14 at 33.

    * * *

    There is no merit 9 of 14 at 34 to DoJ Contention that the production of evidence related to illegal activity has or has not been appropriately classified. Rather, ORCON precludes classification of illegal activity, as the open record shows:

  • The FISA has been ignored

  • DoJ did not secure warrants

  • FISA was in full force

  • AG Gonzalez did not comply with the retroactive warrant requirement

    There is no merit to any DoJ Assertion that the information the states need has been lawfully classified. Given that the information is not lawfully classified, we need not consider the matter whether the information is or is not sensitive; rather, it is probative. It is up to the court to create rules that will protect correctly classified information; and disentangle that information from the probative evidence confirming or denying the illegal conduct.

    * * *

    9 of 14 at 34 outlines the specific billing companies which have already been linked to NARUS< AT&T, and these are located in Israel. These are part of the open record.

    Further, as with IBM and the Nazis, the requirement to produce information related to illegal activity is not privileged. IT remains to be understood how the NSA-AT&T agreements with the phone companies have supported war crimes committed against US citizens, supported illegal rendition, or otherwise exposed American citizens and others to illegal violations of the law and other human rights violations.

    10 of 14 lists the documents. Keep in mind there are open records supporting the Contention that Gonzalez has lied, and that DoJ Staff were not busy when Gonzalez said they were too busy to get warrants: The DoJ Staff computer access logs which show they were not doing things related to their job when Gonzalez said they were burdened with other requirements.

    The States may lawfully request the DoJ LAN and Intel link data showing which specific computers were in use on non-official things when Gonzalez said they were otherwise too busy. The records of the non-official use of computers is open, not a state secret, and forms a reasonable basis to broaden a probable cause inquiry and investigation by other nations into issues of DoJ Attorney Staff war crimes. See 10 of 14 at 35.

    * * *

    Clearly, the states have standing to bring suit. DoJ is know to deny all efforts. Rest assured, Keisler knows he has a problem. He's from Yale, and he has a consistent habit like Addington of twisting the laws. The problem with this complaint is that you'll notice he cited very little Federal Case law, and wholly relied on Executive Orders.

    The problem with EOs is that Keisler cannot show that EO's trump the Constitution. Rather, it's the opposite: EO's are not enforceable when they violate the Constitution, as is the case here:

  • Illegal orders to remain silent about illegal activity

  • Illegal EOs to preclude discussion of illegally classified information

  • Illegal EOs that deny reporting of ORCON violations

  • Illegal EOs which preclude enforcement of the Constitution and FISA by responsible parties.

    * * *

    DoJ lacks the power to interfere with fact finding. Any DoJ conduct that interferes with enforcement of state law cannot be enforced. 11 of 14 at 38

    DoJ cites no precedent permitting it to ignore the Constitution, not enforce the law, but deny others from enforcing the laws. Bluntly, the conduct is illegal and Keisler should know this.

    Keisler at 11 of 14 at 38 has incorrectly asserted that the States may or may not take action on the basis of a nexus between Government classified information and the protection of that information.

    The problem is that the Government cannot lawfully control access to illegally classified information. Rather, these are matters of public interest, and there is not banafide claim that the Federal Government or anyone can hide the evidence related to illegal activity.

    Moreover, the Government does not have excusive control over any contract whose objective supports illegal activity. Rather, the contract -- and promise to remain silent about illegal things -- is not enforceable, and contrary to public policy.

    DoJ cannot cite any law which denies the States the power or authority to review information related to illegal activity with their exclusive jurisdiction. DoJ may not interfere with fact finding at the state level; and the States are separate creatures, distinct from Congress. They do not need any power to do anything: All powers not delegated to the Congress and Federal government are reserved to the People.

    We the People have not delegated to DoJ or Congress the power to violate the law; or block investigations into illegal activity. Rather, the State retain the exclusive power to act to enforce the rights and protect the Constitution, especially when they face ongoing Constitutional and privacy violations and threats to their Republican form of government from domestic enemies inside DoJ and the Congress. That the Federal Law is silent on this matter is irrelevant; the States when they became part of the United were guaranteed the right to a republican from of government. It is the obligation of DOJ to enforce that protection, not deny them that right.

    Thus, any claim that there is "no federal law" authorizing or prohibiting the states to do something related to illegal conduct is meaningless.

    * * *

    Keisler at 11 of 14 at 39 makes (another) irrelevant point claiming that the States have or have not been denied access. Again, the record is clear: Open, non-classified information related to illegal activity shows:

  • FISA has been violated

  • The DOJ has interfered with investigations into DoJ OPR reviews

  • The Government and AT&T and NARUS have an arrangement

  • US Navy personnel do know how to access the AT&T Fiber Optic lines

    The States have no need to consider whether they have or have not been access to illegally classified information related to illegal violations of FISA and their citizens guaranteed right to privacy, and preservation of the 4th Amendment requirements which Hamdan stated must be followed.

    * * *

    There is no requirement for the states to comply with any Federal mandate that they do or do not review illegal activity. Congress has not given the DoJ any power to block the States from acting; nor is this power consistent with the Constitution which mandates that the laws be enforced.

    The provisions of EO are not relevant as they relate to blocking the states. Rather, the States have the power to investigate evidence of illegal activity when they are in imminent and ongoing danger of having their Constitution ignored, violated, and otherwise trumped by meaningless comments from the DOJ Staff.

    No access to lawfully classified information is required. The information the States seek related to illegal agreements to violate the law. This is within the power of the state to seek, and not within the power of the Courts, Congress, or the Executive to deny.

    Nobody on the DoJ staff ha been authorized to fail to report evidence DoJ OPR has the responsibility to review and forward to the DoJ OPR.

    DoJ Assertions that Title 18 provisions apply are moot, irrelevant, and need not be taken seriously. The States are fully within their power to expand discovery into the Department of Justice and any other entity that is violating state law; and this is fully consistent with well established Federal Statutes. [Ex: See 42 USC 1983 permitting discovery by anyone into any entity engage in civil rights violations; a plain reading of the legislative language creates a right of any citizen and the states to act as an attorney general to seek information related to illegal activity].

    * * *

    Keisler’s comments 11 of 14 at 41 are not supported by Terkel [Judge Walker, EFF] stating that the case may proceed, and that the state privilege cannot be recognized as a bar to suit. It is irrelevant what the NSA director may have said; the court, not the NSA director is the body that decides whether the privilege will be respected.

    Rather, the facts before us suggest the privilege has been dubiously asserted to hide illegal conduct. There is no merit to the NSA statement, and DoJ Keisler cannot reasonably rely on the NSA director’s assertion, that the NSA has to disclose anything. Indeed, the President and Gonzalez have already confirmed the existence of the activity; the only issue is how the data is actually transferred from Israel, back tot he NSA. The details of this are not especially interesting, but may have some bearing on liability for the NARUS-AT&T subcontractors for purposes of NYSE stock losses.

    * * *

    It is meaningless to state that "sources and methods" will have any bearing on the matter when the higher interest is in protecting the Constitution. Sources and methods, although perhaps interesting for purposes of creating an irrelevant shield, isn't a matter need to be concerned with: Those sources and methods, however hidden they are, may not isolate the Constitution nor clearly established rights -- To permit this conduct would ask that we permit conduct in the name of Constitution that otherwise destroys the document. That is not lawful and contrary to public policy; moreover, it is conduct that cannot be credibly classified. Rather, it violets the EO and ORCON to classify the illegal conduct.

    * * *

    We conclude that the "strong and compelling interest" claim that Keisler invokes is not linked with classified information, but more likely linked with a larger legal issue directly confronting Keisler: The real risk that DOJ Staff could be indicted for war crimes and violations of the FISA. They have failed to act.

    Keisler may not invoke the name of the Untied States to assert that there is a 'Strong and compelling interest" to do something, especially when those methods are not lawful, and otherwise are the subject of criminal indictments and war crimes investigations.

    * * *

    Nothing Keisler has stated 12 of 14 at 43 is to be believed or relied upon. Rather, he's invoked the Constitution in name only, while in practice he's permitting violations of that document to be swept under the rug.

    Keisler's comments at 43 should be carefully noted: He's cited no case law or precedent.

  • Executive privileges has been dubiously invoked

  • The Federal laws have been violated

  • Information has been suppressed

  • Violations of FISA have been ignored

  • Constitutional violations have been ignored

    None of the illegal activity can be credibly classified; and the States have every interest to discover who has violated the state laws. The States have every interest in pursing this matter, especially when the Federal government refuses to enforce the law; and otherwise plan to create legislation affecting ongoing litigation.

    Because the United State has no credible basis to deny anyone from discussing illegal activity, and there is no basis to classify evidence related to illegal activity, and illegal agreements are not enforceable, the Federal government has violated the law in obstructing an ongoing investigation; and the US government has no standing to prevent anyone from discussing the details of how the illegal activity was carried out. Understandably, there may be some classified information that is bonafidely classified; this should be reviewed by an outside special master.

    Keiser's actions amount to an abuse of power, and he makes no case that the US will be harmed.

    * * *

    Keisler's indictment amounts to an abuse of process and is a violation of the DC Bar rules of conduct.

    Keisler’s indictment is not lawful, and an illegal obstruction of justice. The US has no power to classify evidence of illegal activity.

    Keisler has provided not evidence that any classified information has been lawfully classified.

    Keisler's indictment amounts to prospective enforcement of something that is speculative, but not illegal. This indictment is an abuse of prosecutors’ powers and a violation of the Model Rules related to prosecutors, actionable by the DC Disciplinary Board and DoJ OPR.

    Kreisler has provided no evidence to show why the gathering of evidence related to illegal activity is something that the states cannot do.

    Executive Orders which relate to classified information prevent classification of illegal activity.

    The subpoenas the States have issued are lawful, fully consistent wit the states laws. The invocation of the Supremacy Clause of the US Constitution is irrelevant and has no bearing on the matter.

    The government may not control information related to illegal activity, especially when the government refuses to enforce the law or otherwise ensure that the Constitution is protected.

    Prayer for Relief

    The court should:

    Appoint a special master to review classified information;

    Deny the motion of the Government to not enforce the State right to gather facts;

    Find that the claim of privilege is moot, and has no bearing on ORCON related violations;

    Find that Keisler is failing to assert his 5 USC 3331 obligations;

    Find that the DoJ has illegally attempted to thwart an investigation and obstructed justice;

    Recommend the DC Bar review Keisler’s conduct for potential sanction;

    Recommend the American Bar Association that they immediately file an amicus and injunction asking Congress to stop all work on illegal legislation that hopes to unlawfully affect ongoing litigation.