Department of Justice's Problem of War Crimes and FISA Violations

Effectively managing the FISA and Geneva issues means facing the problem in the Department of Justice: The Attorney General and Staff counsel have been complicit with illegal violations of Geneva; and have refused to remove themselves from illegal violations of the US COnstution.

Digging through their mess will take some time. The work needs to start now. The task will be easier when the Attorney General resigns, and the DOJ OPR working with the Congress, DOJ IG and GAO can outline the scope of problems, and support new leadership.

Habeas and 10th Amendment

Ref Congress only has power to deny habeas during invasion or rebellion; otherwise, the Congress is denied that express delegation of power, and reserved to the states and We the People.

* * *

America’s Governance Issues

The leadership cannot forever remain immune to oversight when the legal issues surface faster than the Staff can chase the fires. The challenge of overseeing the Military Commissions Manual include the unaddressed systemic legal issues in the US government:

- Unresponsiveness to reasonable requests for information
- Hiding illegal activity behind classification shields
- Assertions that clearly promulgated standards do not apply
- Despite clear standards, refusing to fully enforce them against US government officials

The way forward includes developing some other methods to test the US government compliance with procedures that are not openly audited; and whose compliance programs are otherwise not easily reviewed.

* * *

The Military Commissions Manual inappropriate permits non-challenged evidence into the record which may not necessarily be true. Unchallenged evidence is not credible, especially when, despite training, law enforcement and DoD-DoJ reports are incorrect, misleading, or have not been thoroughly reviewed.

The evidence in the files appears to be full of holes, not necessarily filed correctly, nor are the prisoners necessarily matched with the correct evidence.

Even when there are valid lines of evidence – wholly disconnected form any criminal activity, it remains to be understood how DoD is relying on meaningless information as an assertion that someone has or has not committed a crime.

* * *

There are two broad prisoner files:

1. The information about the prisoners
2. The information the prisoners have provided in complaints

Other file system include Camp administration files for running the camp, managing day to day affairs, and overseeing camp personnel.

Based on the public reports of the invalid information in the prisoner files, and the interrogations based on this invalid information, we can speculate on the nature of the camp operations, the files, and the effectiveness of the camp administration to adequate organize the files prior to presentation to legal officials.

If the prisoner files related to the alleged wrong doing is not correct, then it is reasonable to conclude that the files related to perceived lesser priorities – including camp administration, personnel complaints – are in worse condition:

A. Not adequately audited
B. Poorly organized
C. Ineffective problem resolution
D. Camp guards using improper procedures without fear of consequences


* * *

One problem with the Guantanamo data files is the mixing of intelligence information and evidence into single files which are not necessarily vetted; and the court personnel do not necessarily view with an objective eye.

Rather, based on misleading, incorrect, or poorly organized files, court officials at Guantanamo could assert certain lines of evidence, charges, and other remedies which are wholly inconsistent with reality. It remains to be understood how the prisoners’ denial of these accusations is used against them as evidence of their lack of contrition.

Prisoners who are able to rise above the Twilight Zone-approach to evidence are in some positions more competent, professional, and articulate than the camp guards. It remains to be understood how, in the absence of a timely oversight and management system at Guantanamo, prisoners have, in effect, risen to provide leadership, management, oversight, and corrections that the US government refused to provide.

It would be appropriate for the public to closely interface with newly released prisoners and inquire into the prisoner management systems:

___ TO what extent did the camp operations change or improve once the prisoners were organized

___ What it openly viewed that the prisoners organizational structure, within the camp, was more competent in addressing problems?

___ To what extent can counsel comment on the effectiveness, need, or benefits that might be related to providing a civilian oversight system, or some other outside view other than the court and ICRC, that would place the DoD on notice that there are outside observers who will independently review conditions and evaluate whether the programs have or have not been appropriately administrated.

* * *

Chief among the concerns are the prisoner complaint files:

___ How effective were camp personnel in responding to complaints;

___ Were the cases effectively managed

___ TO what extent were files correctly organized

___ How much information was incorrectly filed in the wrong case file numbers

___ When incorrectly filed information did not match the situation investigation, did the information get correctly filed; or was the case closed without correcting the filing problem

___ How effective were camp personnel in cross talking issues

___ Have there been any audits of the prisoner complaint files to see whether the prisoner complaints about the camp conditions have or have not been adequately addressed

___ What is the oversight plan of this camp management to ensure instructions to prisoners are fully supported, not issued without camp management being unable to fully respond to instructions provided to prisoners

___ Were camp prisoners provided with directions, instructions, or other advise as to what they should or should not do – outside legal counsel assistance – that, when complied with, was used as a basis to punish the prisoners incorrectly filed information did not match the situation investigation, did the information get correctly filed; or was the case closed without correcting the filing problem

___ How effective were camp personnel in cross talking issues

___ Were camp prisoners provided with directions, instructions, or other advise as to what they should or should not do – outside legal counsel assistance – that, when complied with, was used as a basis to punish the prisoners

* * *

Concerns

Invalid data in prisoner files appears to be a problem which, in normal cases and judicial reviews, would be vetted. The adversarial approach to evidence, if it fully permitted full prisoner access to all evidence, would permit the prisoner to adequately rebut the evidence which is false, incorrectly filed, or unrelated to the prisoner.

It appears the court personnel may take a deferential approach to information and evidence, assuming incorrectly that information, however incorrect it may be, may be partially true. Whether the information remains in the file on the basis of the prisoners denial; or whether the court exercises discretion to remove information that is erroneous remains to be seen.

* * *

Classified information is not necessarily correct information; and intelligence data is not necessarily correct, nor is it meaningful to support an assertion. The fact pattern related to that intelligence data can be misleading, and disconnected from reality. It is possible for the facts, when improperly couched, to overwhelming support one conclusion; however, if the classified data cannot be adequately challenged, the prisoners and counsel cannot adequately challenge what may be clearly erroneous conclusions about the original data.

* * *

The way forward will be to examine to what extent the scope of the US poor filing, data, intelligence, and evidence collection systems have undermined world support for US objectives. The way forward is not to suppress the errors, but to openly outline the plan to ensure this abuse of information does not recur; and that prisoners can challenge data which is neither evidence, nor connected with reasonable conclusions.

As always, the burden of proof should be on the US government to provide a compelling case that the evidence is valid; that the conclusions are reasonable; and that there is no other possible explanation for the data other than what the government asserts.

It is our concern that the data will be couched not to ensure justice, but to justify conclusions; and insulate US government officials from needed oversight, training, and sanctions.

* * *

There are important consequences when US government intelligence files, despite best efforts to correct that information, prove worthless.

A. Loss of support

People are less likely to put their lives on the line to support US military objectives;

B. Invalid data problem

The risks associated with providing information may be perceived as marginal compared to the potential reward for possibly imposing retaliation against someone falsely accused.

* * *

The way forward is to test the validity, usefulness, and relevance of the data that has been captured; and assess to what extent US contractors and intelligence officials have or have not been appropriately organized and managed.

The perceived shoot first, and possibly correct the record later tends to undermine US citizen support for NSA interception goals, especially when the fruits of that intelligence gathering adversely impacts US citizens: Invalid information is used to illegally abuse, target, and retaliate against citizens who were engaged in lawful conduct.

There’s a double standard on information:

1. Information can be easily provided; and some may perceive it is easy to get incorrect information into the system;
2. However, when there is valid information, US NSA, DoJ, and law enforcement appear to have a high threshold on whether they will accept, act on that information, appropriately handle the data with discretion, and work with others to correct the record.

It is a problem when the perceived hassle of injecting valid information into the intelligence system is perceived to have high personal costs and risks than the probability that the data will be effectively managed.

Once information is collect, if informants and overseas personnel perceive that the there is a lower probability of a correct, reliable, or prudent response or policy than had they done nothing, reliable information will be limited.

* * *

America’s problem has been the speed to which it will move and act on the basis of unreliable information; yet, the slowness with which it will respond to reasonable concerns that the data is unreliable; and a lack of interest in ensuring the data is properly segregated between raw intelligence and probative evidence.

America cannot credibly ask the world to have confidence in a justice system when the evidence and process it uses to evaluate facts is less supported by a genuine desire to solve problems, but perceived more connected with a desire to justify the rightly or wrongly imposed abuses.

* * *

Separation of Powers

With respect to the NSA data, battle intelligence, and Guantanamo files, the President’s problem has been his assertion that he alone has the power to review the FISA and Geneva issues. His actions amount to a usurpation of power.

The Framers intended for the Judiciary to have an important role in independently doing what the President incorrectly asserts he is doing: reviewing the information, making decisions, and implementing plans.

War plans linked with intelligence are different than evidence which may or may not be linked with evidence. The Judiciary has been thwarted a timely role in reviewing legal matters. IT should not take this long, nor should the President’s willingness to comply with the Separation of Powers be something that is celebrated. As Glenn Greenwald suggests: Doing one’s job as President does not mean rewarding the President for finally doing what he’s refused to do – following the law.

The President has no judicial power to decide whether legal cases will or will not be reviewed. Just as the President has no delegated power in approving or not approving FISA court review; the President has no legal power to decide that the Geneva conventions, and required legal protections, are or are not adequately presented before the court.

The President has no power to decide or not decide that a legal matter does or does not fall under judicial review; or is inside or outside the other branches of government.

The issue is not simply whether the legal process is open; but whether the legal requirements of that process have been fully complied; or whether by ignoring the legal process, the justice system unreasonably permits abuse of:

A. Civilians providing intelligence;
B. Prisoners attempting to assert their rights;
C. Informants attempting to provide assistance;
D. Prisoners attempting to correct misleading information

* * *

I would encourage American citizens to take a broad view of the Guantanamo situation and consider the following:

A. If the Prisoners have done something wrong, why is there a problem with the prisoner files, and the data used to determine whether they have or have not done something wrong;
B. Do the prisoners have a fair chance to rebut, remove, and correct the record; or is there some evidence – hidden as classified data – that is not available, but should be

* * *

The worst thing American leaders can do in the name of protecting America is to create a false image of what America hopes to provide, while punishing those who do exactly what the US government communicates it desires: Support, assistance, and allegiance.

A government tends to undermine public confidence when it paints a picture of what it hopes to provide; but fails to deliver on that promise, especially when it abuses those who go out of their way to believe that dream of America means something. It is disingenuous for American leadership to point to the potential of America, while it abuses those who go out of their way to support the leadership in that goal. People are less inclined to get involved, care, or make a difference when their best efforts to assist are openly thwarted, attacked, and actively targeted as a problem.

The error is for American leadership to on one hand complain they do not have support; while refusing to support those who answer the call. It is reasonable to have faith things will work out; but repeated refusals to professional interact cannot be the grounds to compel any American to remain silent about this ongoing abuse.

___ Why should Americans step forward to provide assistance when their best efforts to contribute are actively thwarted; and their best intentions are thrown back in their face with accusations that their interest in the matter is evidence of a psychological problem?

___ What is to be said when the supposedly best trained in government must be eternally double checked because the so-called experts and professionals are incompetent, unable to communicate, jump to conclusions, and quick to blame the people who are standing by?

* * *

America’s intelligence community relies on people willing to come forward to provide information. The perceived risks to offering support are much higher than the momentary reward.

Of concern is the repeated 9-11 lesson that nobody put the dots together. In 2007, despite the so-called lessons of 9-11, the intelligence and law enforcement community is not able to take information, process it, or intelligently analyze it. Rather, they’re more inclined to rebuff the information, not adequately process it, or require close oversight and management by non-professionals.

it is a problem when untrained informants and private citizens must inject themselves into the oversight process because the intelligence community will not discipline itself; or it refuses to discreetly handle issues, preferring the direct approach, as opposed to the most reasonable approach: Sometimes inaction, delays, and silence are most appropriate, especially when the issue is not time critical; and the matters are merely indicators of trends, not necessarily an imminent problem.

The problem occurs when the indicator information is injected into the analysis cycle, but that information is not effectively prioritized. The error is for law enforcement and the intelligence community to accept information, incorrectly believing that the size of the information is an indication of the problem. The correct approach can be that the volume of information relates to the ease of providing incorrect information; and the inability to verify or reject the large volume of erroneous information.

The next error is to presume that correlated information is the same as fact patterns and evidence of guilt beyond a reasonable data. Correlated information can be correlated incorrectly, especially when the fact pattern is consistent with something which misses important information; or there are other activities which have not been factored into the analysis.

* * *

It may be true, and appear to be true, that a fact pattern suggests a reasonable conclusion. The error is for US combatant commanders, law enforcement, and intelligence officials to assert that a fact pattern is fact; while there are other lines of evidence, when considered, would support a benign conclusion.

The rash US leadership approach to information, accept it is gospel when it supports a convenient conclusion; while they refuse to consider the benefits of considering the opposite approach: Calmly engaging with reliable sources to confirm or deny the original information, beliefs, or concerns.

The error is to jump to the conclusion that the problem is evidence of someone else not doing what they should, while failing to realize that others are not required to do or not do something, especially when there is no formal agreement to do or not do anything. America’s leadership problem is linked with asserting that the American approach to policy making cannot be challenged; and that contrary evidence to that presumed superiority is evidence of non-cooperation, thwarting, or violations of policies warranting targeting, confrontation, accusations, and abuse.

America, when it refuses to embrace the possibility that others information may be more reliable, or that other solutions may have more merit, will continue to marginalize those who might come to its defense. On the surface, they may say they openly support the US not because they have faith, but to speak openly about their contempt with American arrogance incites the very abuse they detest.

* * *

America’s leadership, law enforcement, and judicial systems in 2007 remain abusive. The intelligence and law enforcement community fails to comprehend that its management, data, and intelligence filing systems are a snapshot of the problems in the Guantanamo files. Rather than calmly consider other lines of evidence, American officials in the intelligence, judicial, and law enforcement community can just to conclusions disconnected from reality; blame others for daring to contribute; ignore reasonable responses to their request for assistance; and dismiss information and indicators related to imminent problems.

This does not mean that they are blind. Rather, they are not open to the notion that a seemingly benign fact pattern may have been provided not to cause a problem, but to assist, contribute, support, and respond to a previous request. The error is for law enforcement to make the original problems to provide support; but then reject efforts, information, and attempts to coordinate a reasonable interface between the original promises, and the reasonable expectations based on that original request.

* * *

The law enforcement and intelligence challenges are linked with turnover and troop deployments in Iraq. Personnel in law enforcement reserve units, not exclusively devoted to an intelligence or law enforcement position, have a steep learning curve, especially hen they are doubly tasked with multiple duties.

A. Training tends to be compacted, accelerated, and overlaps, keeping newly assigned personnel in extensive training cycles, and delaying when they are able to fully engage as a fully trained contributor;
B. Training classes do not have the necessary breaks to ensure lessons learned are put into practice immediately
C. Large chunks of time are devoted to getting training, while the expected payoffs of that training may take many years
D. Management does not effectively monitor the fruits of the training to ensure a certified person necessarily performs; it is not uncommon for management to assert that someone is certified or trained as an excuse to explain away a problem, rather than explore the opposite: That the training has not achieved the desired outcome

* * *

Audits require sampling. Prior to Sept 2001, the auditing community knew of problems, but there were inadequate top-level reviews which focused on solutions. The same is happening in 2007: Training programs, despite their touted benefits, do not have an effective post-training oversight and monitoring system.

A. Personnel are trained, but information and indicators that there may be problems can be cast aside as evidence of a perception problem;
B. management does not necessarily look at the broader picture, nor realize the benefits of the outside views, considering it nitpicking;
C. Fundamental, recurring communication problems may exist, or there are inadequate cross-flows of information and training lessons to other assigned personnel.

It is reasonable to expect competence: it is inappropriate for the intelligence community to expect the American public to meet performance standards which do not exist, and which the US government refuses to meet.

American citizens have the unfortunate responsibly to manage government despite the government assigned that management duty. The error, in this vacuum of American leadership, is to presume that American public comments are stifling leadership. As with the Guantanamo prisoners, the correct approach is to listen to the feedback, and meet the required expectations of the law and effective governance. The error is to treat the public and prisoners as the problem, permitting the US government to divert attention from the management issues, while pointing at the most vulnerable: Those who know, but have been shut out of the oversight process.

American citizens and Guantanamo prisoners have a common problem: Being the first had targets of the abuse, but being told, not asked, to put up with the abuse; and despite the US government’s unreasonable refusal to adjust, subjecting those who are most correct with accusations that their motives are dubious, questionable, or evidence of fabricated accusations. The facts when explored tilt away from the US government, and suggest the US population and prisoners have valid concerns, but are not being effectively respected, applied, tailored, or used to effectively improve government operations. The American public does not have the responsibility to meet a specific commutation standard; rather, US government officials, regardless their position, have a duty to glean the gems from the provided information, and solve the problems. The error is for the US government, despite its reckless disregard for reality and refusal to consider options, to couch the new information in convenient schemas, then disingenuously request more inputs and suggestions which are similarly rebuffed.

* * *

The error is when the feedback is ignored, and the undesirable conclusions – regardless their merits – are dismissed despite the promise of change. The same system which refuses to consider other fact patterns in 2007 is just as capable of launching dubious wars, with plans which the strains of combat reveal the flawed thinking and refusal to adjust, wait, or consider other options.

Leaders who abuse use legal smokescreens to avoid accountability; and they create dubious war plans which are ultimately exploited on the battlefield. Battle ensures the fact finding – or lack there of – is irrelevant: You either win, or you don’t. There is no debate.

The error is for American leaders to believe that the abuses connected with the law enforcement and intelligence community – in thwarting information and rationalized as acceptable – are without cost. The error is to subject US combat forces to conditions which rely on faulty intelligence, invalid plans, and defective leadership. The problems with American leadership in the intelligence and law enforcement bleed into combat: America cannot credibly argue that the problems are isolated to one segment of society.

* * *

The DNC won the 2006 election. However, the delusional cloud of denial, non-sense thinking, accusations, and abuse which existed prior to Sept 2001 continues in 2007. The process to reform this abuse will require something more than an election result, but something fundamentals, possibly including a catastrophic combat loss – above the losses in Iraq – to awaken America to the new reality:

1. America’s system of government is not a static system of checks and balances, but people who remain committed to do the right thing, even when they are doing it very badly, and refuse to respond to appropriate feedback that a solution is needed;
2. Leaders who refuse to manage non-combat situations are not tested to demonstrated they can effectively managed combat
3. Skills which should exist in peaceful conditions cannot be expected to exist in more stressful environments
4. Personnel who are poorly trained, overtaxed, and insufficiently experienced are not in a position to provide informed judgments about other classes of citizens, especially when the private citizens are in a superior position to review a larger picture outside the umbrella of law enforcement or intelligence.

* * *

Americas error is to presume that opposition to abuse is evidence that the American approach is worthy. This is backwards. The way forward, apparently lost on Americans, is the escalation Americans take to violence, abuse, and overt attacks. The same approaches which fail to compel compliance with abuse in civilian life cannot hope to succeed in combat, foreign affairs, or within the US government. The error is to silent those who have the most to say; and those who have the freedom to say what needs to be said without fear. All others have a higher burden, and less easy time to say what needs to be said. The error is to burn the bridges with those who might openly speak, and ignore them when you most need to listen, or create new excuses to abuse them.

It is absurd to use someone’s awareness of reality as a basis to target them; or use their desire to assist as supposed evidence of their desire to do the opposite. A system which refuses to respond cannot hope to survive but with abuse and excuses – it does not correct on its own, but requires outside intervention. America cannot point to its education as evidence of its supremacy when the fruits of that education – leadership – cannot or will not do simple things:

1. Listen without taking issues personally;
2. Respond to feedback without interrupting;
3. Be willing to listen to the full story;
4. Consider that there might be other explanations;
5. Ignore the possibility that the actions have been requested;
6. Fail to comprehend that what has been asked for has already been provided.

We are not required to keep doing your jobs, nor to go out of our way to double check what you have been supposedly been trained to do. Rather, your job is to take the feedback, good or bad, and improve; not make excuses to continue doing what incites opposition to the abuse.

Reasonable4 conduct, when rewarded with abuse, cannot be expected to continue. Rather, leadership which rewards absurd leadership has absurd expectations of combat victory.

If America would like to take a legal approach to issues, refusing to respond to simple feedback, the error is for American to fail to comprehend it has lost on the ultimate legal forum: The battlefield. One cannot assert the idea of victory while losing; nor point to new plans of what might be, while today’s plans fail. Until today’s problems are understood, tomorrows plans should not be expected to achieve any better, especially as the resources dwindle. Imprudence in government means imprudence in battle.

* * *

Americas leaders like to point to academics as a problem, accusing them of holding onto issues. History exists, and until examined, defies understanding. Without examination there can be not confidence that the proposed solutions are valid, much less believe that the right problem is being addressed. Solutions must be linked with real problems; creating casting of what solutions might be mean the proposed plans will not address reality, but fiction.

It is absurd for America’s leaders to argue they have superior intellect, while their plans fail in battle. Rather than adjust or listen, they’re more likely to accuse the critics of being negative, rather than providing a valuable service: Feedback. The worst enemy is one who will provide no feedback, leaving the leadership unprepared for what is failing; or not warned of what is about to collapse with a well-timed surprise.

* * *

One may have power, but that access to power is not guaranteed, especially when challenges to that power are rebuffed with false accusations. The needed change, when not embraced, becomes inevitable. The error is to refuse to adjust early; and pretending that the inevitable disaster is an excuse to continue the abuse, arrogance, and reckless defiance of reality. You are free to enjoy your delusion as you are defeated in combat.

The error is to apply arbitrary standards to those who do not agree with those standards; and refusing to enforce the standards so-called professionals have freely accepted but defy. Leadership means delivering on what you promise; and doing what is reasonable in response to what you offer as an agreement.

___ How much effort is required to get this government to cooperate;

___ What other options exist that would provide other views and approaches.

* * *

Perhaps there is hope with new leaders that internal audits will get attention, evaluate the procedures, and review the effectiveness of training.

Where there is no change, the way forward is to know the understandable risk areas. The error is to use the risk management as an excuse to target; it is no wonder these plans are secret – talking about reality is too scary, especially when others have solutions which may or may not be what others comprehend may be required. The false charge is to accuse risk managers of worrying. Their job is to solve problems which might happen, not wait until the disaster and find an excuse to blame someone else.

The risk manager has to deal with:

___ Uncertainty

___ Miscommunication

___ Lack of coordination

___ Misunderstanding plans and intent

___ failing to see the larger picture

___ Making rash decisions with long term consequences without taking time to review a matter, and conserve resources for the long-term. A minute spent listening is an hour saved.

Law Enforcement Intelligence Audits

___ How effectively is management testing the information?

___ Is the crisis team meeting the intent of the training objectives?

___ Have no-notice visits been used

___ What types of sit-ins has manage done on training to valuate whether the information provided is meeting management objectives

___ How are results measured in terms of employee standards

___ Does management review the effectiveness of the training

___ How credible is the evaluation plan

___ How is it decided when refresher training is needed

* * *

Keeping activities classified, hidden, and beyond oversight does not send a signal that the needed legal or management controls are in place. Rather, its more likely, the institution will not change, nor review whether the approach have or have not been resolved.

___ How effective are complaints to DoJ OPR

___ To what extent are investigating officers accusing complainants of having a perception problem; when the problem is DOJ Management refusing to review evidence of incompetence, mismanagement, or reckless disregard for the rule of law.

___ After the DoJ OPR reviewed the information, did the result solve the situation; or has the complainant been left in a worse position

___ How effectively are investigations timed, delayed, and protected to shield the identify of confidential informants

___ What remedy exists when there is retaliation against counsel providing reasonable feedback about peer misconduct, suspicious behavior, or refusals to professional conduct themselves as is expected of the DOJ Staff?

___ When personnel are identified as acting in a peculiar, unusual, or questionable way, to what extent are the reports rebuffed; or the concerns explained away with “that’s not illegal behavior.”

It is reasonable to expect DoJ Management to respond to concerns not simply because it’s the right thing to do, but professionalism will inspire confidence, support, and loyalty. Where the DOJ Management refuses to show loyalty to the standards, there is little to compel the American public to be loyal to arguably defective management approaches.

* * *

DoJ Management has some problems. DoJ OPR and the IG need to be brought into the nexus:

___ What method is used to valuate whether the training is or is not working?

___ To what extent is DoJ management relying on self-certification, attestation of compliance over sampling and outside review?

___ How have direct observations been thwarted?

___ Is there a reason that the DOJ OPR and IG random, no-notice sampling is not used to observe effectiveness of training while prosecutors conduct their affairs?

* * *

The White House, DoJ, and DoD have been at the center of the 2001-2007 abuses. I would prefer that there is in place a monitoring system that will ask a simple question:

___ Is this situation recurring?

I would like to see the OMP ensure the training provided is applied to the DOJ OPR in that the DOJ Management is compelled to assent to the DOJ OPR feedback, as opposed to throwing it in the can, or pretending it can be ignored. What is not faced will get worse.

If DoJ respects the fruits of the legal profession training, and does not compel staff counsel to support illegal activity, the turnover situation might improve. Until then, assertions that higher pay will solve the problem, without solving the management problem, are meaningless.

* * *

Consider the DoJ OPR responsibility:

___ Have the White House counsel effectively worked with the feedback to solve the leadership problem; or

___ Is the entrenched refusal to respond to legal standards the only evidence needed to suggest there is no prospect any DoJ OPR feedback will have effect?

___ What information has DoJ OPR been denied?

No-Notice Audit Issues

Responsiveness

Statutory compliance

Access to personnel

Management assistance

Complaint volume

* * *

Staff Counsel Professionalism

Listening

Fact finding

Discretion

Responsiveness to information requests

Outbursts

Appropriateness of conclusions

Evidence: Use of non-observed behavior for legal conclusions

* * *

Risk Areas

Communication lines

Physical location, interface, reception, exit

Follow-up

Meeting, contact interface

Information management

Instruction details

Failure to align reported information with issue/situation of interest

* * *

___ Has there been a timeline?

___ Which preliminary meetings have been excluded from that timeline?

___ Relevance of feedback to the original problem, resolution

___ Was the situation resolved as expected

___ Which incorrect perceptions were designed, supported

___ Has there been an offer to provide full information

___ What intervention is planned to resolve the original complaint, clarify the issue

___ How have the indicators been explained away by personnel not familiar with the overall DoJ OPR objective?

___ If there is no problem, why the reluctance of management to consider: The original conversation; the subsequent updates; and the multiple lines of evidence

___ If the original complaint was not valid, why did personnel change their position in one area; but pretend that the problem was something else? [Can’t argue that the original concerns were invalid if the response to those concerns was, in any way, a change which eliminated part of the problem.]

___ How much of this is a discipline problem: Correctly focusing on the line of evidence supporting the concerns; as opposed to making excuse to target the Staff Counsel filing the complaint?

___ Which of the complainants have been targeted or are facing retribution for raising an issue required under the Attorney Standards of Conduct, DoJ OPR guidelines, or other fiduciary standards?

___ Putting aside the legal risks, to what extent is the failure of the DoJ Staff counsel to effectively interact with DoJ OPR contributing to a recruitment problem of staff counsel replacements under this Attorney General?

___ How many deliberate misperceptions has Gonzalez left with the intent of playing people off against each other; as opposed to having the needed confrontation with the Attorney General over his poor management skills?

___ Is there an explanation for the Attorney General’s misstatements before Congress; or is there something else going on which the Attorney General has not adequately briefed the Committee?

___ Does the Attorney General comprehend the concerns with the inconsistency between (a) his professional standards of conduct; and (b) what he is doing; and (c) what he is saying.

* * *

The Attorney Generals leadership problem is having an impact on the DOJ Staff. The Attorney General may have a grudge, or believe that certain legal issues which he was instrumental in crafting as White House counsel, are not longer defendable. The way forward is not to hide the evidence, or pretend that nobody knows. Rather, the responsible position is to accept that the original positions were illegal; and that the President, in refusing to permit Congressional or Judicial review, has an entrenched legal problem well connected to long lines of evidence which cannot be legally protected. Evidence of illegal activity cannot be shielded by privilege when the President and Attorney General have jointly permitted, even inadvertent, the existence of these memoranda related to the illegal usurpation of power.

* * *

The error is for the attorney General to refuse to spend time, as is required, verifying he dies understand the legal issues; and has a credible legal foundation. He does not. His legal positions are tenuous, not grounded in law, nor defensible. These are the lines of evidence suggesting the Attorney General knows he has a major legal problem:

___ His indirect communication style

___ Deliberate efforts to leave wrong perceptions

___ His refusal to openly communicate on legal issues

Others can see the consequences: The Attorney General is stewing on the fact that others have pointed out a problem that was real; and the Attorney General should have adjusted, but did not. The Attorney General is not above the law; nor is his public activity, however he may believe it is connected with a desirable goal -- justified or defendable is not something he can assert, but must assent to judicial review. Him agreeing to do what he should is not a basis to celebrate, but ask about the original alleged illegal activity; and the failure of him to accept responsibility for what he did or did not do. Blaming DoJ Staff counsel for them doing what they should – reporting information to DoJ OPR – is unprofessional.

The correct approach, if the original conduct was lawful, was for the Attorney General to have contained with what was lawful; not asserted it was lawful, blame the messenger, then pretend that the legal standards were something else.

* * *


It is wholly inappropriate for the Attorney General, despite the public discussion of the illegal activity, to target DoJ Staff counsel, or pretend that the valid concerns when raised with DOJ OPR warrant retaliation against staff counsel.

DoJ Staff are graduates of some of the most prestigious law schools. It bring discredit upon the those laws schools when students with honors act in an unprofessional way, are openly rewarded for defying their oath; or assent to unprofessional conduct.

It does not matter how fine the training tapes are for the US Attorneys; those tapes mean nothing when the management refuses to reward professional conduct, but does the opposite: Shows special deference to some DoJ Staff counsel who support illegal conduct; while doing nothing about the abuse and retaliation against DoJ Staff counsel who are attempting to assert their oath, while remaining loyal to the Executive Branch.

The error is to believe that the attorneys in the DOJ Staff will remain loyal to what is not legal; or jeopardize their livelihoods when the scope of this abuse, misconduct, and reckless defiance of the law is openly admitted. It is irrelevant that the disclosures may be inadvertently disclosed; or that the problems arise when the Attorney General makes inconsistent statements under oath; the results are the same:

- No confidence in the DOJ leadership
- Substantial, reasonable questions about the training and oversight system in the Department of Justice
- Reasonable questions about the merits of anyone asserting they were or were not associated with the Department of Justice
- Substantial problems with motivating the most talented to join an organization that is decaying from within.

* * *

A casual observer of the JTTF and intelligence personnel reveals contrasting approaches. Although similarly situated personnel attended the same training, the results are surprisingly inconsistent: Gross disparities in the ability to translate lessons into effective employee conduct.

It is unprofessional for the DoJ Staff and US Attorneys, working in concert with law enforcement, and intelligence personnel to:

___ Project their insecurities onto others

___ Jump to conclusions

___ Explain away quick assessments disconnected from reasonable fact patterns

___ Displaying aggressive behavior [pacing, outbursts]

___ Openly making adverse decisions while lacking key information

These actions are not professional, do not inspire confidence by the DoJ Staff in the DOJ leadership, and call into question the training and screening of the DOJ leadership.

It is reasonable to have high expectations not simply because the positions of power and influence, but because of the visibility and importance of the positions. However, the time and attention given to important ethics issues is at odds with the importance of having those ethics issues resolved: There is too little time given to entrenched legal problems; and too much time given to pretending these problems do not exist.

It is reasonable for the public to not have confidence in the Department of Justice leadership when the available resources are not properly managed to effectively enforce the law. Rather, the goal appears to be the opposite: Creating the illusion of legality, while the unresolved legal issues continue to erode the once stable legal arguments. This is like pulling a loose thread on a rapidly shrinking sweater.

Where there could be discretion, open accusations of incompetence belie the core problem: Those being accused are not being professional managed; while those who are defending this incompetence are not professionally taking an objective view. It is not impressive when the DOJ leadership abuse the DoJ Staff; or when the DOJ Staff is openly abused for unacceptable reasons. There is no justification for this mistreatment.

These issues could be solved with the right leadership. The way forward is to remind the DOJ Staff that they have legal options; the abuse is not acceptable; they are not alone; and their concerns are reasonable. The problem is not with the DoJ Staff raising the concerns; but with the DoJ leadership who refuse to accept that there may be a required intervention, but who refuse to act.

Some are willing to listen. Others, without information, are wiling to make conclusions about things they’ve never seen; or make inferences about events which never occurred. It remains to be understood why some DoJ Staff leaders are willing to embrace a convenient conclusions, but they are not willing to take the time to ensure their conclusions are reasonable, and connected with reasonable fact finding. The results are the opposite:

___ Hasty generalizations

___ Rash decisions

___ Convoluted justifications

___ Unsupportable risks

___ Invalid timelines for fact patterns

___ Failure to acquire evidence related to the asserted legal position

___ No allowances for adverse legal positions, more likely to prevail

___ Inconsistent status reports on whether motions will or will not be ready

* * *

These issues are not being adequately resolved. They are understood outside the building. DoJ and the intelligence community needs new leadership that focuses on solving problems, not in making accusations to silence those who are doing their moral best to assert their obligations to DoJ OPR.

The ground rules need to be clear:

___ What is the method to resolve these issues

___ Without a plan in place soon, what are the legal options

___ Have the indicators in USAM been properly considered

These issues can be resolved if the Attorney General were to resign. However, new management cannot be rewarded for talking about change, but bringing real change: Restoring prestige to the Department of Justice. The Grand Juries have the information, but they are not in a position to finalize their indictments. Gonzalez is walking on thin ice.

DoJ Staff are familiar with the legal issues. They may be focused on other disputes, but this does not mean they have no questions. The issue is why, despite their concern, there is not an open discussion of what will solve this problem; as opposed to pretending the Attorney General can do what he cannot. He doesn’t appear sufficiently competent nor credible to exercise leadership, while remaining objective; his time as White House legal counsel does not mean that he’s qualified to ensure compliance with the law. He’s more interested in asserted the legality of something which is not longer defendable.

* * *

We need some outside review, and some open discussion of the conclusions floating around the building:

___ What conclusions were originally made on the activities;

___ Howa re the observations compared with real issues; vs. indirect information

It is not appropriate, using people not familiar with the details and events, to attempt to map out the key milestones, events, or decisions: They were not involved; they have no comprehension of what was agreed; and there is no basis for their conclusions relying on their lack of information. They are not professional qualified to assert these conclusions; nor have they given others the time and space needed to effectively challenge these accusations. They are not reasonable, but unfair, abusive, and appear linked with DoJ Staff leadership habit of projecting their insecurities and defiance onto others. There are other options.

* * *

It should be the goal of the DOJ Staff leadership to maintain the high road. It is one thing to be aware of illegal conduct and powerless to change it; quite another to unprofessional insulate oneself from others to recast misperceptions.

The authority of the department hinges on the law, not just a perception of authority. However, when American citizens view the Department of Justice as part of the problem, and not the solution, there is a bigger problem confronting the department: To what extent the Department can credibly prosecute cases when the evidence lines are thin, the motions are not well grounded, and the legal arguments are connected with flawed policies.

It would be more appropriate for the Staff to show respect to those attempting to assist them, as opposed to quickly jumping to the defense of those who show disdain for the legal system.

* * *

A sign of a problem is when people attempt to resolve an issue, but this interest in assisting is rebuffed with absurd roadblocks; or when anecdotes are shared to highlight a solution, but the details of that argument are dissected, while losing the big picture.

There have been other conversations. The personnel are not aware of the entire lines of evidence. There was no excuse for their abuse or inappropriate assertions. They did not take the time to examine the issue. This does not reflect well on their professionalism, regardless their lineage, training or education.

There is no need to pace in your office; nor is your condescending attitude going unnoticed. It remains to be understood how you would like your disaster to be prevented; or whether you would like the disaster to be one you are unable to escape.

___ If this situation is different, why are you letting this affect you?

Your training appears to be have been insufficient.

* * *

You cannot be expected to be rewarded with training or conference tickets when you defy the rule of law and your professional obligations. Your most loyal supporters are uneasy; they are acting up not because of their problem, but because you have led them to where they are – in a vulnerable, in defendable situation.

___ Who is managing these issues?

___ Where is the training plan?

___ How will the cross=talks be facilitated?

___ Do the officers understand what information they’re told to expect?

Training has its limits. More training for illegal operations will not solve anything, especially when they are disclosed, indefensible, and the Congress openly discusses Negroponte’s reservations. IT is a waste of time to study more cases when the illegal activity is openly known

You are free to discuss who might provide leadership. The caseload, even if it were increased, will not solve the informant management issues. When the information is reliable, your gut feeling is not correct. Yes, there can be more to the story.

Reasonable standards of conduct should be enforced. When we support a circular argument, the errors can be long lasting. Others are willing to help. The information is designed to assist; people will help if you let your training take its course. When you blame others, there will be escalation.

* * *

___ Is there a reason you’re not taking time to examine the story?

___ Why have the cross-talks been inadequate?

___ Is there something more to the story?

___ Is there interest in understanding the problem first hand?

It is not correct to assume the informants have a problem. The issue is the legitimate interest to report valid indicators of illegal activity and suspicious conduct.

Your error was to ask for what you have been given; and to refuses to take the time to understand what is going on. These actions may not be related to a problem you understand, but other agreements and conversations beyond your knowledge. They will be known.

Professionals should not have to be told to do the right thing, raising questions about your professionalism. Your misperceptions make your job that much harder. You bring discredit upon the United States, regardless public assurances that the situation has been amicably resolved.