Constant's pations

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

Friday, September 01, 2006

NSA: Keisler Gets It Wrong (Again) In 6th Circuit Motion

Peter D. Keisler remains eligible to fill the DC Court of Appeals seat, vacated by Chief Justice of the United States Roberts. Fortunately, Keisler will have some time to refine his thinking before self-appointing himself as supreme dictator. He may rule his sand castle, but not the Constitution.

[Readers, check back here, at this URL you are reading, for a link to the commentary on the DoJ Motion.]

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News Flash: After having his rear-end legally thrashed in the Diggs opinion, the Gargantuan Keisler latest (fleeting) effort is to drool before the 6th Circuit.

Let's put aside that Keisler and Bybee, despite confirmation to the Federal bench, could be indicted for war crimes and illegal policy making, and focus narrowly on the scant quotes from Keisler's groveling in the Friday afternoon Press release.

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Myth 1: Enforcing the law will cause "the gravest of harms to the government and to the American public"

Hamdan affirms requirements. FISA is a ministerial duty. It was very bad advice, Peter to make up excuses to ignore the law. Addington may be a bully, but it doesn't mean you have to play along with him.

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Myth 2: DoJ Criminals Respect The Law and Court

DoJ has a demonstrated track record of defying the court, and refusing to cooperate with the law. Consider:
"We respectfully submit that this court should not override the national security judgment of the president and the nation's senior intelligence officers regarding the harm that would result" Ref

If DoJ wants to "respectfully" do anything, it might encourage its attorneys to start listening to the US Attorney Video Training programs from the AG and Institute.

It is absurd for DoJ to assert that the President has unreviewable judgment. Rather, the President may assert the moon is made of cheese, but that assertion does not, can never will, escape the informed judgment of the court.

The principle of separation of powers means that the judicial branch, not the clerk in the oval office, gets to be the decider of what is right, or what is wrong. The clerk, with very narrowly delegated powers, has only the power to enforce the law, not violate the FISA statute and his many ministerial requirements. Nor does the President, as Judge Diggs reminds us, have the power to create non-Judicial reviews, then self-certify that he is or is not complying with the law. Rather, this is the providence of the Court.

Yet, theoretically, if the President did have any Judicial power, which he does not, the President’s problem is that he's violated the Judicial Cannons. The President's admission, if we take him at his word, is that he has illegally exercised judicial power. He has violated his 5 USC 3331 oath of office.

This violation subjects him to prosecution for interfering with the State's power to enforce Constitutional state statutes. There is probable cause to continue the State Attorney criminal investigation of the President for violating state criminal statutes; and lawfully prosecute the President before the Supreme Court.

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Myth 3: DoJ Criminals Have Lawful Powers

DoJ has no authority to compel anyone in government to ignore the law; violate the law; pretend warrant requirements do not exist; or otherwise issue authorization letters permitting violations of the Constitution. It makes no difference what DoJ wants the public, court, or contractors-intermediaries to believe: The law is there to be followed, not explained away.

Indeed, if there was any confusion about the billing matters at Verizon, the Verizon General Counsel would not have commented on matters which DoJ and Verizon have said cannot be discussed. This is a fatal problem for the government's contention that the issue is related to national security. Indeed, the issue is about something more subtle: The Constitution, and Keisler's oath of office.

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Myth 4: DoJ Criminals Have An Effective Attorney Training Program

Contrary to the Press release assertions that there would be any harm in enforcing the law, the harm is in permitting continued violations to go unchallenged, uninvestigated. Either DoJ Staffers can lawfully cooperate with the inquiry; or the court can make adverse inferences:

  • The DoJ objective is an illegal conspiracy;

  • The sole White House-DoJ plan is to avoid detection of contractor-government complicity in illegally use evidence captured through unlawful means to illegally violate the clearly promulgated rights of American citizens who remain detained in Eastern Europe and North Africa;

  • The President's domestic attorney-client monitoring program has illegally deprived defendants of information useful to their defense, and has not fully complied with the Brady requirements;

  • The domestic warrantless interrogations are not lawful, and based on data that has been illegally intercepted;

  • The illegal use of DoD military forces in domestic DoJ home raids is illegal, and are not bonafide training as permitted in the training;

  • The NSA's claims that the domestic surveillance is protected for training purposes is dubious and has been abused; and

  • The President has illegally invoked privilege to hide evidence of criminal conduct, lawfully subjecting him to State Attorney General prosecution, not to mention the parallel possibility of impeachment proceedings.

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    Myth 5: DoJ Criminals Are Concerned About The Rule of Law

    DoJ's other error is to mislead the public about Sept 2001. The illegal domestic surveillance had already started prior to Sept 2001.

    All claims by DoJ and the President that the illegal activity must continue are dubious. Despite the illegal surveillance prior to Sept 2001, the attacks of Sept 2001 still occurred. There is no merit to any assertion that the continued illegal activity will stop what the NSA has already demonstrated they cannot stop: The placement of explosives in the WTC and other buildings.

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    Myth 6: DoJ Criminals Have Fully Complied With The Law, Have Hidden No Evidence of War Crimes

    No classified data need be examined. The President has admitted to violations of the law, circumvented the court, and has not secured the required warrants. How the NSA and NAVY physically attach mechanical devices to the underwater fiber optic cables is interesting, but irrelevant. No court has to review the times, locations, or whether the cable is located at 200 meters, or along the side of a shoreline off the coast of Iran, near a pumping well to monitor Iranian tests. It doesn't matter.

    These communications relate to domestic targets. This is illegal.

    The state secrets' claim is not absolute. It can be claimed, but the court does not have to recognize that claim, especially when there is fraud, the claim is dubious, and connected with a desire to hide evidence of Constitutional violations, as is the case here.

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    Myth 7: DoJ Criminals Are Not Concerned About War Crimes Tribunals

    There is no defense or excuse DoJ or the White House can offer. It is false and misleading for anyone in DoJ to ask anyone to believe that any defense is impossible. Rather, DoJ Staff and Keisler in non-court filings and letters sent via FAX, have made public statements, none of them are successful. These amount to out of court admissible statements, and may be considered by the DC bar for purposes of disbarment; and can be admitted to an international tribunal for purposes of indicting Keisler and other DoJ Staffers for their alleged complicity in providing illegal opinions and failing to remove themselves from war crimes planning, execution, and cover-ups.

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    Myth 8: DoJ Criminals Will Freely Comply With The Statutes

    Anything that is illegal should and shall be stopped. DoJ and the NSA have had at their disposal before Sept 2001, lawful intercept capabilities, and known FISA requirements. These capabilities are consistent with FISA. DoJ and the NSA refuse to use them. This is inappropriate.

    It is a misstatement for DoJ to suggest that the court order will end "the program" entirely. At this juncture, DoJ and NSA have narrowly defined "the program" to mean something that does not capture the broader illegal conduct.

    DoJ has offered no lawful solution, and has refused to comply with reasonable requests to comply with the law. The only reasonable course of action is to shut down what DoJ knows it not lawful.

    DoJ is in no position to negotiate, whine, or pretend that it is doing anything consistent with the law. Whether DoJ can or cannot be trusted is a matter for the court to review on a case by case basis. DoJ and the government have the burden of proof. They have not met their burden. The program shall be shut down.

    Further, DoJ shall cooperate with the Congress, DOJ OPR, and outside plaintiff counsel in fully complying with the New Jersey counsel subpoena issued against the President. He has no choice. He must follow the law, and turn over the evidence related to his illegal conduct.

    The court finds that the NSA surveillance is illegal and connected to fraud; any claim of privilege is not recognized. Any and all claims of privilege, immunity, privilege and exceptions are dubious and not recognized. He has abused these powers, privileges, and immunities. They have not been delegated to him through the Constitution, and the court need not respect the President. The President has shown no deference to the FISA court or the specific ministerial duties within the FISA statute.

    These are not issues of power, but matters of criminal law. DoJ and the White House shall cooperate; or the individual DoJ Staff counsel, US Attorneys, NSA contractors, and White House staff shall be imprisoned for obstruction of justice.

    You wished this.

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    Article Errors

    This phrase is incorrect: "President Bush allowed the NSA to conduct the surveillance without first getting court approval".

    The correct reading should be: "President Bush, despite the illegal NSA surveillance, allowed the events of 9-11 to occur; and failed to get court approval for the illegal surveillance before and after the events of Sept 2001."