Constant's pations

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

Sunday, October 08, 2006

Parallel Oversight Of House Investigation

I'm not getting a warm feeling about this investigation. Rather than wait until the end, it would be appropriate to immediately start a public-version of the Congressional Ethics Investigation.

This goes into some discussion on what may be considered.

For your convenience: Archive of this investigation.

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The Congressional ethics investigation is not going well. The early signs are mismanagement within the investigation, poor sourcing for evidence, and poor investigation management.

I'm sure you've noticed some things as well. Contrasting this investigation with Fitzgerald’s review of Libby-Plame might shed some light on the problems.

This is a bad sign. Normally, an investigation that is well managed will do just that: Be well managed, issue compelling public statements, and tend to inspire public confidence that things are going well.

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What's Needed

It's of little interest to me what Congress may or may not be doing behind closed doors. Indeed, what Congress does or does not find will be late; whether that conclusion is or is not credible is something that will have to be explored later.

The core problem is the country has an imminent election, the need for information, and a leadership problem within the House. At the center of the problem is we don't know how pervasive this pattern of House Leadership malfeasance has been, and to what extent it has contributed to Geneva violations, failures to look at FISA, and a failure of Congress to review the Constitutional violations related to 9-11, Patriot Act, Military Commission, NSA, and Iraq.

The media needs to apply the lesson of Iraq: Ask and share early and often.

We also need to see some organization to independently review the Management issues; make an independent presentation on the issues, cases, facts; and shift away for a question of "whether we do or do not have balance" in the media, to whether we do or do not have facts.

I'd like to see the mainstream media and blogosphere join forces and jointly agree there's much we don't know; but we can combine our references to come to some reasonable conclusions about what is or isn't going on. I'd like to see the media engage the legal community and ask directly:

- Are there some patterns of conduct that have bearing on how the 9-11 investigation results did or didn't get implemented?

- Are the patterns of conduct related to why Geneva violations and GTMO/Abu Ghraib/Eastern Europe abuses were not investigated?

- Is the pattern of conduct an excuse not to gather facts, but pass legislation that is disconnected from evidence and the Supreme Law -- i.e., the illegal Military Commissions Bill?

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My view on the matter is simple: Yes, the House leadership issue is related directly to the larger abuse of power, and the failure of checks and balances.

We can debate all day whether this conclusion is or is not true; then second guess the solutions. The issue at this point is to ensure we notice what is going on.

(1) Hastert has lied

Hastert's public denials have been inconsistent with the timelines his close associates have provided. This raises the real prospect Hastert could be indicted for perjury. We don't have to wait until the final report gets issued to conclude that others have noticed the same, but are not demanding a timely resolution to this leadership/oversight problem. If the Speaker is willing to lie, as it appears is the case, to investigators, then we have to wonder who in the FBI may have sent a signal that these misstatements are permissible.

(2) The FBI has lied.

FBI agents have a tough job; We the People have a bigger problem -- when our professional agents are not reliable in reporting information, taking informant information, or investigating a case. The FBI, SAC, and Supervisory Agents have fallen down. DoJ OPR has also been shut down. We're looking at another DOJ Attorney General problem, and likely White House communication with the AG on what did or didn't happen three years ago.

Ref Details on misleading statements by Hastert, FBI.

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We learned after 9-11 that the intelligence community knew many things, but the White House did nothing.

Let's ask the foreign intelligence: What do they know about the issues, and can they shed light on the scope of the apparent Congressional oversight issues that we may not be aware.

It appears the intelligence community is willing to discuss the information.

Managing This Public Investigation

I can do this on my own, or you can help. If you want to help, you're going to have to consider that there are a range of issues we still don't know, but we'll have to develop a data-organization-system that will manage what's going to surface.

Here's what you may whish to consider:

___ Clearly established rules and procedures can be understood, reviewed, and compared to emerging evidence

___ When people lie, or refuse to do what they should do, the easy solution is to create another story, but it doesn't add up

___ Rather than admit there was an original problem after 2001, we've had many lies; and this issue with Foley is merely the can opener that could potentially link to every other major issue -- FISA, 9-11, NSA, Geneva violations.

___ People have made public assurances to colleagues that there are not problems, all the while having no basis for that statement, or they knew there was a problem and did nothing

___ Stories, requirements, rules, and tasks have been created after the initial problems to shift the burden or proof, reporting, and problem to other individuals

___ FBI agents have illegally lied, misrepresented the case, and have issued misleading information; their problem is they failed to credibly interact with the US Attorney to receive a proper declination; they had the information needed to review and forward the information, but the US Attorney now wonders why the FBI didn't forward the information as required, and let the US Attorney decline. FBI agents and their supervisors have illegally exercised declination discretion that only the US Attorney has. This isn't news.

___ Rather than resolve the issue and work to solve the problem, we've heard excuses why specific requirements were or were not enforced.

___ Specific requests for information were disingenuous. People who may have relied on that request for information -- in responding to the House leadership request -- have been illegally targeted for unlawful retaliation.

___ Rather than do what they ought to have done, the House leadership has illegally shifted the oversight, requirement, and other tasks to other people who were not in a position to comply with the requirement. This was part of the deliberate ruse to avoid taking action.

___ The pattern of conduct is widespread, and not isolated to this issue. It is well known, but has not been corrected, as it should have been.

___ Those who are most knowledgeable of what has happened have been gracious with their cooperation; but because they have cooperated, they are now allegedly being unreasonably targeted with abuse, bordering on criminal activity. These are subsequent violations which the House is not necessarily concerned with yet, but the FBI is well aware is occurring.

___ Documents, evidence, and other data have allegedly been destroyed despite the US Attorney letter directing data be retained. The issue will be to reconstruct the data, and still couch the evidence in terms the voters can understand and make an informed decision.

___ Complaints to FBI and law enforcement were allegedly given lip service. Substantial evidence that was available, but not reviewed, is still waiting to be examined.

___ Law enforcement, the capitol police, and intelligence agencies have allegedly been tasked to engage in retaliation. Some of this involves passing along rumors, inciting others to take action, and also encourage people to target those who are speaking out. The House leadership knows this activity occurs, and has failed to ensure these abuses have ended.

___ Rather than respond to the original requests for assistance, the leadership has lied; and it is now changing the story of what it has or has not heard for several reasons (1) the excuse for inaction was not consistent with their written procedures, and policies; (2) They know they lied and have been caught; and (3) Their only option is to change the tone of the original complaint to something that matches what they did, not what they should have done, or what happened.

___ Subsequent complaints to other officials were reasonable. Follow-up investigations were not sufficient. Despite the promises to review the matters, the original people who were given the information have subsequently lied again about what did or didn't happen to put the blame-accountability-attention on those who have provided the truthful information.

___ Outside parties who were in a position to take information have been allegedly compromised. When Federal officials, FBI agents, law enforcement, and government officials realize that they are the target of the investigation, they will go out of their way to encourage the front office to rebuff information, attack those who bring information, and encourage the front office to treat the incoming complaints as personal attacks, unfounded, or abusive. This is a deliberate stonewall and well used within the Department of Justice.

___ Because of a lack of support for the original complaints, and the subsequent denial of support, some individuals have been corruptly persuaded to recant their testimony, adjust their recollections, or not assert their rights or the truth.

___ Those who have been caught, and know they didn't do their job, are allegedly developing illusory standards of conduct, requirements, and other irrelevant standards that the public should or should have met. This is a deliberate distraction from the original requirements that the public officials failed to meet.

___ The requests for information have not been appropriately supported by outside counsel. Personnel who are inexperience din the law are being encouraged to work with investigators who are allegedly abusive, and have poor skills at objectively taking information about their peers. The public has not been appropriately advised to work with outside legal counsel to ensure their complaints are consistent with their legal interests, and credibly present the facts in a manner that will best withstand legal review.

___ Witnesses have not been appropriately prepared. Before presenting information, the witnesses have not been given the chance to sit down with counsel, ensure their fact patterns are complete, and appropriately ensure their presentation is correctly matched with the relevant case law, jury instructions. There are details which may not appear important that witnesses are not recalling. The affidavits are poorly constructed, and the investigators are allegedly looking for reasons to ignore important details which point to larger issues.

___ There's been inadequate interim oversight, audits, and internal reporting. Rather than deal with supervisory issues, the House leadership allegedly encouraged employees in the Congressional staff to put the blame on those who are not towing the party line.

___ The staff turnover, resignations, and claims of abuse have not been correctly matched against Statement on Accounting Standard 99, which are the indicators to increase audit scope. An outside investigators and auditor would increase audit scope to better review the samples; this allegedly was not appropriately done, as otherwise required under Generally Accepted Government Accounting Standards.

___ Promises to review the information provide cursory. Rather than resolve the issue, the management directed its attention at the easy solution. The problem was when additional complaints surfaced. You will find if you dig into the history of the personnel involved that the trends occurred in other locations, times, and in different arenas. They've been enabled. Notice closely when they take smaller supervisory skills; or the details of what has happened in other locations.

___ Public statements in one forum are not consistent with the statements and actions in a different forum. For example, Hastert claims that he took all appropriate action, but the facts do not bear that out. If this were true, we would expect to see a similar pattern in another situation: Where there was initial information, but his conduct did not match what he should have done; or he took efforts based on other information. The issue is that the Speaker has two different stories on what is or is not appropriate; and how he does or does not define appropriate responses. If the issue is favorable to his personal financial interests, he will creatively seek a way to use the inside information to his advantage and take action; however, if the potential result may be adverse, he will do the opposite and fail to take action that he is otherwise required to do. The issue isn't the truth, but the inconstancy between personal and public acts.

___ People have allegedly been mislead about what is or is not required, but later to discover that the misinformation was provided to ensure they were not prepared. Outside counsel is needed. The participants involved have more interest in gathering information, than they do with assisting. Their other motives include undermining the public confidence of witnesses, while maintaining what little credibly they have. There are other efforts underway to rely on this false confidence. Notice closely the other issues that are being shoved under the table, and not getting sufficient challenge or scrutiny. This timing is artificially rushed.

___ Those who have failed to do their job, or have provided lip service to their official requirements knows they have a problem. They are fearful, and likely to lash out. The witnesses and other people involved need to be adequately prepared for this possibility. The House leadership should know the pattern of witnesses’ abuse, but have not considered this as an issue. The witnesses should be accompanied by adequate support, and if the interviews become abusive, this information needs to be immediately publicized through the open media, and the names of the investigators provided for subsequent audit and investigation.

___ House leadership needs to be clear, in writing, and formally issue statements as to what they expect by way of statements, support, and cooperating. If the House leadership is not willing to ensure the Congressional staff fully supports these requests, it will become painfully obvious when witnesses are abused, evidence is not examined, and piles of memoranda are not given the care due. Until the House leadership personally conducts a sample of the work products, and verifies with no notice visits that the investigators are appropriately interviewing witnesses, the public should have no confidence the House Leadership is effectively ensuring this investigation is credible.

___ Calls that there be consensus, agreement, or uniformity in the conclusions are inappropriate. Each party may have different views of the facts. The public needs to know whether anyone on the investigation team, witness, or the House leadership has been dissuaded in any way from telling their version of the events; or to what extent the case law, used to evaluate that conduct, has or has not been selectively twisted as it was in the Iran-Contra minority report.

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What You Can Do

___ Keep your eyes on the case law, jury instructions, and US Statutes. Evidence, as reported in the media, has already indicated that Hastert could be indicted for perjury.

___ Monitor closely whether the personnel involved have experience in the areas they are reviewing

___ Ensure that the witnesses have the time and space to add other thoughts and clarify their views

___ Ensure you know whether witnesses have or have not been threatened, privately contacted by non-counsel

___ Ensure you know whether witnesses have or have not been prepared, given breaks, and have the chance to rest

___ Ensure you are aware whether the House leadership is or is not looking at the broader issues of management problems, and exploring eagerly whether the broader pattern of conduct is or is not linked with Geneva, 9-11, FISA, NSA, and Iraq.

___ Notice whether the House Committee is narrowly stating the scope of the review, and blocking subsequent inquiry into House management inaction related to Geneva, FISA, NSA, Iraq, or 9-11. There are other skeletons in the closet that are going to surface.

___ Consider doing what has been done with the Libby-Fitzgerald: Ensure we get a clear story on what questions have been asked; and then a comparison between public responses to those questions with the likely implications. This will mean getting a clean story on what occurred during the interviews. We'll also get an idea whether the review questions are or are not adequate, complete, or what they're missing.

___ Familiarize yourself with the House Ethics Here; their oath is to the Constitution and they promise to put the Nation's interests before the party. As practice, contrast that oath and promise to this discussion Here. Notice the inconsistency between loyalties -- what people, Members of Congress, Congressional peers say one should be loyal to; vs. what the oath/ethics say.

___ Familiarize yourself with the House Rules related to Ethics investigations: Here; know what's reasonable to expect, and be mindful for things that are not consistent with what should be happening. The House oversight issues have broader implications related to Geneva, war crimes, violations of FISA, and the abuse-rendition issues. As we learn more, knowing the House Rules will put you in a position to spot signs of problems like this, this, this, this, this, or this.

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We've already seen problems with the House leadership on issues 2001-2006. We've had plenty of evidence that they pass legislation first, and then hide the facts on issues related to FISA, 9-11, NSA, Iraq, and Prisoner abuse.

The FBI has already lied. The DOJ OPR has already been blocked. The DOJ Staff counsel has already voiced concerns they could be implicated for war crimes. This inquiry has every prospect of ending in the White House, oval office, and National Security Council.

The problem is this investigation is not about leadership. It's about whether the American system of checks and balances is or is not going to effectively work and self-correct. If Americans are not willing to demand the leadership civilly resolve these issues, and take the legal issues to the court, then American leaders are saying that the Rule of Law is good for the world, not America. There should be no wonder why foreign fighters use that reasonable conclusion has the basis to expand their continued attacks on American combat forces.

Going forward, we already have early signs that the investigation has been derailed, they're on the wrong track. We don't need another 9-11 sham investigation as we had with FISA, Geneva, and the Iraq WMD.

WE don't have to wait for Congress. We can make adverse inferences. Consider the available legal guidelines and standards, and make your judgments as to which criminal activity may have occurred, but was not appropriately reviewed. How you vote is not the issue: The question is whether you make an informed decision based on what we will have to piece together.

Members of Congress are under investigation. This is not a simple issue. The evidence also links to alleged war crimes, malfeasance, and a pattern of conduct designed to not enforce the laws of war. This House leadership has voted to wage illegal war, defy the supreme Law. It is nothing for them to commit other illegal acts in order to defend what they view as their entitlement: Power.

The only barrier to their abuse of power and our rights is the Constitution. We the People have the power to compel this Congress to assent to our will. They are there to do our bidding. Their job is to assert their oath. If they fail, they could be prosecuted under 5 USC 3331.

if this Congress refuses to assent to the rule of law, and defies, as it already has done, the Article III courts, We the People have only two options: (1) resolve this failure at the ballot box; or (2) Wage war.

This Congress must realize that its credibility has long been hanging in the balance. It would be preferable if they awaken to reality: The Citizenry has awoken. We are prepared to engage in oversight of Congress. Should Congress fail, we can find new leaders. We are not going to find a New Constitution.

We may need to, but that is a second issue.

Congress must decide whether it is with the rule of law, or is in defiance of its oath. How they act, and whether they do or do not take their oath seriously is nothing we can control. We can only decide whether we will have more of what has not worked, or vote to change what has always been in our power to change: The government.

As you go through this process, remember you are not alone. Avoid making rash judgments or decisions. Your goal should be to apply what you have learned since 2001. As with every political campaign, the elected officials will spar with each other. This time, the elected officials have chosen to spar with the mightiest of foes: The Constitution.

They have no hope of victory unless they focus on facts, assert the rule of law. In the end, we will know and we will decide, whether this Congress cooperates or opposes Our Will remains to be seen.

They wished this.

Hoc Voluerunt!