Constant's pations

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

Saturday, January 27, 2007

DoJ Staff Counsel Disingenuous Respect For FISA Court

DoJ Staff Counsel provide non-sense legal arguments . . . again

After calling for the suits against NSA to be dismissed, the DoJ absurdly pointed to FISA court precedents as a basis to not do what should be done: Provide full disclosure of the illegal activity Ref

Absurdly, the DOJ is referring to "long standing practices of the FISA court" as a basis to block disclosure of information. This is ridiculous. DOJ is not credibly [paraphrasing] "concerned" about the FISA court practices or precedents. They've hardly showed deference: FBI agents have lied and misled the court.

There is no basis to have confidence that the illegal activity has ended; or that the government will respect any FISA court ruling. The FISA court is not viewed as having oversight power, but something to be ignored at the whim of the President. The President has engaged in impeachable offenses.

Illegitimate governments cannot compel loyalty. Until the public can freely inspect the FISA court order and review what oversight has been blocked, all Americans should view the DOJ Staff counsel assertions as more recklessnes and evidence of illegitimate government.

State prosecutors should move swiftly, in the absence of Congressional action, to lawfully prosecute the President for his reckless disregard for the States' right to a Republican form of government requiring an enforcement mechanism. The DoJ Staff is not enforcing any law, but enabling tyranny. They should be disbarred.

* * *

Indeed, until there is a ruling striking down as unlawful the President's FISA violations, the government may return to its illegal activity.

There is no basis for DoJ Staff counsel to argue that the "facts and legal authorities have changed." FISA statutes have not been changed.

If, after the change, the challenged activity does not exist, then this means the President was not fully complying with FISA; and that the challenged activity did exist.

The problem with the government's position is twofold:

1. The President blocked DoJ OPR from reviewing this matter;

2. Clear rules were ignored, despite no assurances that the full spectrum of activity is under the law.

There has yet to be a full accounting of which personnel, despite FISA requirements, permitted the illegal activity to occur. It should not take this long to get the government to comply with the law, regardless how artful its legal defenses.

It's this kind of non-sense which inspires US citizens to throw up their hands, put more confidence in other institutions that are adversarial to the US government position, and refuse to enable a system which is reckless.

* * *

The DoJ has asked for the suit to be thrown out. The absurdity of the DoJ position is, by the change in position, admitting the previous activity was illegal, and was improperly outside the FISA court review.

The government has yet to demonstrate the actual activities, however described, do or do not fully meet the legal requirements. There's every reason to believe that there are ongoing activities, outside "this program" that are violating the law.

The government's position would ask that we reward its bad behavior with inaction; and as long as the government can stall, avoid oversight, and make frivolous legal arguments, that nothing can be done. Yet, these very government obstructions were the basis for establishing the FISA court.

This is not a simple issue of civil liberties, but criminal law. The government has admitted that the activity did not meet the legal requirements.

It remains to be seen whether the government’s "solution" is a solution, or more of the same: Ruse compliance, while other activities remain outside the law.

DoJ has yet to show that the lawsuit has no "live significance" -- the allegations remain the same: There was no adequate compliance program with FISA; and there are other programs which need FISA oversight. The Government needs to certify in writing under penalty of perjury that the disclosures to the FISA court are complete; and that there are no other programs outside the FISA court review.

If the White House and DoJ Staff refuse to provide this certification, or they are shown to have lied, then counsel should be disbarred.

It's the job of the counsel to receive and secure the assurances from all NSA and DoJ personnel that the program disclosures are adequate. Inadequate disclosures cannot be rewarded.

The way forward is to determine how this will not happen again despite [1] the FISA requirements; [2] the US government official oath of office to preserve the Constitution; and [3] fiduciary duties to ensure they fully assert their attorney standards of conduct.

This US government’s reckless approach t reasonableness is what inspires the support for the Taliban, Iraqi insurgents, and other foreign fighters who lawfully provide an alternative to the recklessness of the White House and DoJ: Competence.