Constant's pations

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

Friday, January 19, 2007

NSA Contractors Still Violating FISA

The Attorney General has fatally admitted that the US government monitoring was not lawful.

Existing NSA technical solutions would fully comply with FISA. Illegal methods, contrary to FISA allowances, remain actively used.

Congress should ask Negroponte what he knows about the other programs permitting US contractors access to voice and electronic data without warrant; and how this information has been sampled and tested despite no plan to comply with FISA.

Had the technical approaches been fielded, the NSA contractors would not have had to spend this much time sampling data -- by physically listening to it, and violating FISA. They could have been developing solutions to comply with the law.

Ref: ( h/t)

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Gonzalez fatally admitted that he spent time trying to legalize the procedures, fatally admitting that he knew the activities did not comply with the. This is similar to Addington's fatal assertion that he didn't want to change the prisoner treatment procedures in Eastern Europe because the required change would have been ad admission of the original violations.

For Gonzalez to assert that FISA is not adequate, he's asserting he has judicial power to decide whether the law is or is not Constitutional. This in illegal usurpation of power.

The Executive has no power to decide reality and the conditions that may warrant ignoring the law. This is a rule making function that only Congress grants through terms which may or may not include exceptions.

The Executive has no power to decline to enforce the law.

Fatal to Gonzalez position are the known NSA programs and technical solutions which the NSA IG audited and are included in the classified audits.

Thin Thread was fully coordinated with the Joint Requirements Oversight Council. It is a separate matter whether the contractors assigned to that program do or do not have a problem managing data, being responsive, or technically demonstrating that they can do simple data archiving work for the Department of Justice. Gonzalez needs to explain in detail:

___ Why was this known technical option not fully implemented before Sept 2001?

___ Was there a reason, despite the existence of this technical solution which complied with FISA, that the Attorney General refused to fully incorporate this possible technical solutions within the FISA reforms coordinated with Congress?

No change to FISA was required; and the NSA personnel and contactors have well discussed technical solutions.

The error was for Gonzalez to believe that he could hide the legal approaches, and pretend that he worked really hard to find a solution.

Gonzalez is lying. Using methods which the NSA has not been able to duplicate, it is possible to correlate the staff positions, their workload, and the public statements Gonzalez made on specific programs.

Here's what's known:

1. Gonzalez is lying.

2. Gonzalez knows that there were technical solutions available that were not being used;

3. NSA audits fully document the existence of these classified technical, legal approaches which Gonzalez as White House counsel knew, or should have known and asked about as remained lawful options.

4. Gonzalez knows DoJ Staff counsel, contrary to statements made to Congress, were not busy, as he would like Members of Congress to believe; and were not too busy to process warrants

5. The NSA technical solutions did not require a change to procedures; the problem has been the reckless DoJ Management approach to DoJ Staffing which does nothing about their use of official resources for non-official business.

6. There is no credible assertion that Gonzalez can make that he had to spend time on other things, or review matters. He failed to apply this review to the legal matters on Geneva, FISA, or the prisoner abuse issues.

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The technical solutions that would fully comply with FISA have not been credibly presented to Congress. These technical solutions have been sidelined under a ruse of "special circumstances" but Members of Congress have not been given an explanation of the technical approaches of the lawful approaches.

There has been no clear showing to Members of Congress, of the program data related to Thinthread showing a reconciliation matrix between:

A. The Constructional Requirements;

B. The technical solutions available;

C. The technical backup systems to ensure full compliance.

Members of Congress, because if their security clearances, should be provided an appropriate version of the reconciliation matrix. This is available from the NSA and DOD Joint Staff in the program documentation. These documents have been signed.

Negroponte knows about the problems: The proposed activities, regardless the technical solutions which are legal, are beyond what the Constitution permits. Despite a technical solution that would fully comply with FISA and the Constitution, the US government is not effectively managing resources to bring this program into effect.

The US government has deliberately mislead Congress about what is or is not a requirement, pretending that the FISA standards are debatable, or that there was a rush or emergency. The illegal activity started before Sept 2001, meaning there was no valid crisis warranting reckless disregard for the FISA court.

There are other data capture systems which rely on direct sampling, and are not fully complying with the minimization procedures.

The data has been transitioned to contractors under the guise of "training," and has been back channeled to DHS and JTTF in the form of "investigative leads." The problem has been the timing issues between:

A. DHS access to the non-authorized data;

B. The timing of the DHS seizures of US citizens; and

C. The failure of DHS to show that the information was or was not appropriately used despite US citizen denial of access to counsel.

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To be explained is how the data captured was used to schedule the DHS interviews; and how the commercial contractors involved were or were not fully integrated in the scheduling and transportation systems, not just of people but of the data.

The data is ours, not the contractors.

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____ When will the Attorney General provide to the DOJ IG and Committees detailed information on the staffing assignments; and why DOJ Staff were working on non-official business when the Attorney General lied and said they were too busy to do what was required?

___ Which FBI and DHS agents have been promoted because they are able to dissuade public discussion of the reckless approach to statutory compliance?

___ Is there a reason why the FBI Asst Director likes to promote in the FBI personnel who have a poor understanding of case law, evidence, and the responsibilities of the US Attorney to make declination decisions?

___ What is the reason that Gonzalez, as White House counsel, approved the NSA illegal interceptions prior to Sept 2001?

___ Does Gonzalez comprehend that WE the People know of the NSA technical solutions that would have been fully compliant with FISA requirements; yet Gonzalez refused to use them, violated FISA, and did not timely provide this full account to Congress?

___ Why did it take Gonzalez this many years to 'get around" to doing this -- accepting that the current surveillance does not meet the FISA requirements?

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The Executive was never delegated any power to decide or not decide whether the requirements were nor were not sufficient.

Congress alone has that exclusive rule making power.

The President has no judicial authority to permit or not permit a program to be subject to court review.

The President was never delegated any judicial power to decide of a legal issue will or will not be reviewed. The President and Gonzalez have illegally violated the law, and unconstitutionally usurped Judicial and Legislative powers.

The illegal activity is a separate matter from the unlawful usurpation.

NSA employees know full well the Attorney General is lying; and that the NSA leadership has in place ongoing activity which still ignores the FISA requirements. "This program" -- which Gonzalez refers to -- does not include the other things which the NSA does to test, store, and intercept data.

It is not lawful for the information to be delegated to contractors for their review; nor may the Attorney General delegate this intercept and testing function to non-US government officials.

The agreements which permit US contractors to test, access, and sample the data are not properly administrated. There should be no allowance for any activity which permits any US contractors to access data without warrant; nor open endedly permit NSA access to facilities unless that access is overseen through the FISA Court.

The NSA technical solutions, if they are allowed to be fielded and used, could fully satisfy the FISA requirements. There is no requirement for FISA to change.

What's needed is a new Attorney General who is timely sanctioned for perjury before Congress.