Constant's pations

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

Wednesday, September 06, 2006

NSA: DoJ Pretends Executive Has Power To Violate Constitution

Penalty against the President!

* * *

There was a curious quote which deserves discussion. In the coverage of Federal District Court, U.S. District Judge Gerard E. Lynch discussion with DoJ's Anthony J. Coppolino, Judge Lynch asked rhetorically:
Does the president have the power to do something despite the fact that Congress said ‘thou shalt not have this power’?” Ref Ref

The court appears to be raising an issue of power. However, there are a couple of problems with this implicit assumption: The NSA litigation isn't about power, but a ministerial duty to follow the law, both the Constitution and the FISA. Congress has the power to make rules which the President has to follow.

However, even if the NSA-litigation was about power, the President cannot exercise any power that violates the Constitutional requirement for a warrant. Congress is not in a position to grant or deny any power; nor is the President in any position to self-delegate the power to violate the Constitution.

Rather, FISA does the opposite and creates lawful way for the President to violate the Constitution. If the President gets a warrant from the FISA court, he can secretly do things that are otherwise illegal: Intrude into people's private homes, violate their privacy, seize their assets, and put people in jail.

The problem is when the Executive wants to violate rights without getting a warrant, and ignores the FISA requirement.

* * *

RNC Mythology

In general terms, consider the broad pattern of conduct within the RNC: To muddy the waters on whether the issue is a specific ministerial duty, or one associated with power. The confusion is by design.

Power, although narrowly delegated, is amorphous and is easy to invoke when enforcing a contractual non-disclosure agreement; ministerial duties are requirements, and a non-disclosure agreement is not valid when the aim of that agreement is to hide violations of the law.

Ref Power and ministerial duties were deliberately transposed on page 460, note 28 of the Iran-Contra Minority Report.

* * *

DoJ Staff Have Been Betrayed

If the RNC can get people to assent to illegal use of power in the name of [ excuse of the week ], there is no need to question whether they will or will not leak information. The problem has reversed itself: The RNC is no longer confidence it can wave the "power"-wand, and compel anyone to remain silent about illegal violations of the law.

The American legal community is in a paradox. There are a few lawyers trying to figure out how to make their "non-enforceable employment contract" (that otherwise binds them to silence) into something that is impossible:

  • 1. They have illegally agreed to remain silent about violations of the law;

  • 2. They rely on their employment contract as a means to secure a living;

  • 3. They believe they have no option, and choose silence, out of fear of losing their livelihood. They perceive the short-term risk of speaking out, to be higher than the long term risks of detection.

  • 4. They pay no attention to the risk that continued association with the illegal conspiracy, war crimes, and other unconstitutional conduct may put their lives at risk. They're betting that the consequences for involvement in the wider conspiracy will be further away.

  • A. If they speak out now, they can't explain why they didn't speak earlier;

  • B. If they remain silent, there are fewer people left holding the bag, and fewer co-conspirators to blame. This reasoning is flawed: Once the conspiracy has started, and the illegal acts have occurred, it's too late to retroactively remove oneself from the conspiracy.

    The DoJ Staff and legal community is stuck, and have been betrayed by the very people they initially trusted. The problem is that the DoJ Staff is lashing out at the wrong people: The American citizenry, not the President. This is why the DoJ Staff must lawfully be destroyed in the court, impeached, and discredited.

    Here is how: Ref. There are records within DoJ OPR that have to be filed, processed, and reviewed when DoJ Staff become the targets of an impeachment proceeding. This simply means that DoJ OPR has to review the evidence that the court needs to evaluate whether the DoJ Staff is or is not a credible witness. The President and Attorney General have no plans to cooperate, and they have defied the DOJ OPR. This is the trap.

    Once the President refuses to permit the impeachment-review to occur, and otherwise block the court from accessing the evidence that would impeach the particular DoJ Staff member, he's engaged in obstruction of justice after he's had time to fix the problem by complying with Hamdan. This is key. Once Hamdan and the CIA rendition issue surfaces, this links the President, Attorney General, and the DOJ Staff to a fixed point in time: They knew there was a problem, and took action to comply with Hamdan.

    Fine. Their next problem is to explain why, despite the response to Hamdan, they still refuse to cooperate with the DOJ OPR requirement to comply with the impeachment-evidence review. The Oregon litigation has opened the door to discovery of the DOJ Staff, FBI, and the US Attorney. Ref They're stuck.

  • Here are the inconsistent statements: Ref

  • Here are the questions related to the illegal attorney-client intercept program Ref

  • The problem is that the DoJ Staff cannot claim privilege, because according to precedent, once there is an inadvertent disclosure, all privileges are lost. Ref

    The DoJ Staff has been set-up, and will have three bad options: [1] Commit perjury; [b] stay with the illegal conspiracy; or [c] invoke the 5th Amendment. The problem for the DoJ Staff, is that regardless their invocation of the 5th Amendment, the evidence outside their control destroys any credible claim of state secrets, and otherwise subjects them to not only criminal prosecution at home, but war crimes indictments abroad, not to mention the civil liability for conduct that is not lawful, and wholly disconnected from their oath. The President's pardon for the DoJ Staff counsel is meaingless when it comes to issues of international war crimes.

    Let Congressman Conyers know this time period will be important to mark on his calendar. The NSA has been in contact with the intermediaries, they are panicking, and making many mistakes related to:

  • Inconsistent statements on what they know or didn't know;

  • The timing of what they have or have not been told;

  • What information they knew, or should have known;

  • What was actually occurring with the renditions in Egypt; and

  • When they should have known that the War in Iraq and WMD issues were of such gravity is to trigger war crimes.

    This leads back to Rove, Cooper, and what Fitzgerald has in the sealed indictment. Rove only was concerned because he had discussed with Cooper the very thing Fitzgerald knows should not have been discussed. Fitzgerald has declined to take action.

    The Grand Jury, you will note is not the same as the US Attorney. Both names on the sealed indictment are blocked out.

    Next time the DoJ staff has a problem with their employer, the worst thing to do is to call a New York lawyer. This isn't a labor issue. It's a matter of criminal law. The lawyer has already stood on the wrong side of the Supreme Court once and lost the case. If they try to make a break for it, there are helicopter gunships in Cuba ready to land in the Cayman Islands. The funds have already been traced, and the EU special investigator well knows who provides the logistics support to Eastern Europe: Non Official Cover status employees working under contract for the CIA intermediaries.

    * * *

    Constitution: The Principle of Protection

    Recall the purpose of the Constitution -- protect rights, prevent the abuse of power -- otherwise the Constitution means nothing:
    [Federalist 78] Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.Ref

    * * *

    Let's reconsider the Court's question on power. If the Court is asking whether power is or is not constrained, then the question, by implication -- whether FISA, as an act of Congress, is or is not Constitutional -- is meaningless. We did not delegate any power to the Executive to violate the Constitution.

    If the Executive ignores FISA, he has only the Constitution to rely. There remains in the Constitution, wholly disconnected from whether FISA is or is not constitutional, the requirement to get a warrant.

    Regardless whether FISA is or is not Constitutional, the Constitution remains the Supreme Law of the land, and the Executive has no power to ever violate the Constitutional warrant requirement, even during wartime. It is a separate matter whether anyone chooses to stop the President, punish him, or remind him of the Supreme Law.

    * * *

    The issue is the social contract. In exchange for We the People giving up power, the government promises to protect rights and constrain power. When that government no longer respects their responsibility, then the government is no longer legitimate.

    There are consequences to failed governance. If the Legislature and Judiciary are not willing to assert their oath and protect the Constitution, and otherwise refuse to defend both the document and our rights, then we need not recognize this government. Rather, we may lawfully abolish the illegitimate government through a New Constitution and enact a series of reforms to enhance the citizen oversight of the government.

    The current Constitution will not go away, nor will rights change. The change will be in whether the Federal government is or is not delegated certain powers, and to what extent the States have federally protected powers to check an abusive Federal Government.

  • A New Constitution is ready for discussion here

  • Legislative reforms are outlined here

    Federalist 10 and 78 impose duties on the court to strike down illegal acts which illegally permit violations of the Constitution. If the President gets his way and the Constitutional violations are ignored, the court will have defied its oath of office. Under the New Government and New Constitution, one of the first orders of business would be to bring impeachment charges against Judge Lynch for failing to protect the Constitution. Let's hope the court was merely thinking out loud to appease DoJ.

    The Constitution shall prevail. Whether the government cooperates is a separate matter. Indeed, note the Iranian President knows how to move between Cuba and Venezuela, lawfully enter US airspace, land in New York, and then safely depart. This is a dry run to render DOJ Staff to The Hague for the war crimes tribunal. Cuba and Venezuela have strike aircraft and combat helicopters fully capable of providing lawful assistance.

    They wished this.

    * * *

    Constant ranked #4, out of 5.04 million: Ref. Thanks to those who continue their tireless work and assistance in lawfully defeating the enemies of the Constitution.