House Illegally Denied Information To Oversee President's Unlawful Surveillance

Ref NSA revelations: The White House is not providing the legal arguments Members of Congress on the House Intelligence Committee need to conduct oversight.

Rep. Wilson shared her concern the House was not provided the White House-DoJ legal arguments related to the NSA surveillance.

The following information is for the House Judiciary Committee to expand the review into the pre-Sept 2001 NSA surveillance.

Ref Despite the feigned selective memory problem on information, data, legal arguments, time tables, order of events: How did the President and Rice know to start illegal surveillance before Sept 2001?

Ref: Coverage

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Recommend: Information be given high priority in your discussions with the House Judiciary Chairman:

The Chairman may already know this information, but it is framed in the context of new lines of questions which may be of interest to the Chairman and the Committee Staff Counsel working with the House Intelligence Committee, who were reported to have raised concerns they were not given access nor provided to White House-DoJ legal arguments related to the surveillance, much less technical details of the. This is unusual in that Members of Congress have legal training, and clearance for classified information

___ What other legal issues are Members of Congress not being provided?

___ Why are Members of Congress, despite clearances, not being given full access to legal memoranda related to their oversight responsibilities?

___ When is the DOJ OPR, DoJ IG, and House Judiciary Going to work with the Members of Congress on the Intelligence Committee to understand the basis for the Presidents illegal refusal to discuss, share, or provide to Members of Congress the minimal legal information required for the House to conduct oversight of the President's surveillance activity?

___ How did this decision -- not to provide House Members with legal memoranda, decisions, or legal arguments related to the surveillance activity -- get memorialized, reviewed, and examined by the House Judiciary, DoJ IG, and the DOJ OPR?

___ How were these issues -- as they related to refusal of the President, DoJ, and Attorney General in not providing legal arguments to the House Intelligence Committee -- reviewed in the context of reporting to Congress and Title 28 and Title 50 exception reports?

___ Given the apparent refusal of the President to fully disclose the activity, legal arguments, and details, how has the House leadership fully asserted -- through all applicable activities -- the legal tools as are available under Title 28 and Title 50 to review, examine, and document the apparent gaps in the President and Attorney Generals required reporting to Members of Congress on this issue? [ Background: About Title 28 and Title 50 exception reports. ]

___ What is the plan of the House to seek assistance of GAO, CRS, and the DoJ IG and NSA IG to review these legal matters, and find out more about the decision of the President and others to not provide the House Intelligence Committee the information related to the legal decisions connected with this surveillance?

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Significance: Line of evidence as reported is not reconciled with the pre-Sept 2001 illegal activity; or the presumed legal arguments memorialized prior to Sept 2001 events.

If the President was "surprised" by the PDB Aug 2001 memoranda; why would the President "not be surprised" by other information prompting him to start the pre-Sept 2001 attacks?

Information and line of questions below sheds light on the alleged misstatements of Rice and others before the 9-11 Commission on what they knew. There is an inconsistency between the US government supposed timelines; but the real legal arguments related to the pre-Sept 2001 illegal monitoring.

Rice, Yoo, and Gonzalez, as they were positioned on the White House staff in the White House counsel's office and National Security Council would have been privy to the information triggering the pre-Sept 2001 NSA illegal activity; but are unable to explain why they left the alleged false impression that they were surprised by the information in the AUG 2001. Contrary to assertions that "nothing was done" after the PDB Aug 2001 memo, the President before the Aug 2001 memoranda learned of something else triggering him to start illegal surveillance, well before the issue of AUMF was a legal arguments.

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1. President Refuses to Provide to House Intelligence Committee Legal Arguments For Surveillance

As reported, members of the House intelligence committee have not been given access to the legal arguments, not to mention the technical details, of the NSA monitoring.

2. Innovative judicial approaches raise House Intelligence Committee Member Concern

As reported, DNC Members of Congress on the House intelligence committee are concerned the court is using an "innovative" approach; judges are not supposed to be "innovative" but supposed to enforce the law as Congress alone defines it.

___ What additional information is available about the "innovations" the court has agreed to;

___ What is the plan of the DOJ to share with Members of Congress the specific "innovative" features of this procedure;

___ Why are members of Congress -- responsible for oversight of this activity -- not able to get access to the first step: The legal arguments related to that activity?

___ When were these legal arguments developed?

___ Were the legal arguments developed before or after Sept 2001?

___ How does the DOJ Staff explain that the legal arguments -- supposedly linked with Sept 2001 events -- were or were not available to explain, justify, or defend the pre-Sept 2001 monitoring?

___ What relevance, in the mind of DoJ staff, is the President arguing that the surveillance is lawful; but the Congress has not been given information on the nature of the legal arguments related to that surveillance?

___ What is the basis to say that a legal argument is classified -- as it related to post Sept 2001 monitoring -- but the real monitoring of the President started prior to Sept 2001?

___ What is the difference between [a] the legal arguments the House intelligence committee has not been given access to; [b] the legal arguments developed after Sept 2001; and [c] the legal arguments developed prior to Sept 2001?

___ Which legal arguments did Verizon review, get access to, and use to decide that the NSA could have access to the open Verizon facility, as the Verizon General Counsel revealed in an e-mail to Mr. Cowie of Main?

___ Which legal arguments did Qwest CEO use to determine that the approached NSA activity was not legal, and prompted him to decide he could not legally cooperate with the President's planned activity?

___ Which legal arguments did the DOJ and NSA provide to the intermediaries, billing companies, and NARUS to get their support to support what appears to be illegal surveillance?

___ Which legal arguments did NSA, DoJ, and the White House Provide to Abraxas, Boeing, SAIC, Terremark, Titan, and other contractors who allegedly were using this information to support rendition, prisoner abuse, and other alleged violations of the laws of war?

___ How can the President argue the legal arguments are "classified" or that they relate to "national security" yet the supposed "national security issue" -- related to Sept 2001 -- had not yet happened when the illegal surveillance was starting prior to Sept 2001?

___ How is the President able to "classify" something -- after Sept 2001 -- which has no relationship to the real legal issues which are or are not linked to the pre-Sept 2001 surveillance?

___ What is the basis for the President to say -- in advance of 9-11, without an AUMF, and no attack -- that there is a "security issue" warranting illegal surveillance; yet there was no event that would indicate a problem?

___ If there was information the President had prior to Sept 2001 that there was something warranting illegal activity and monitoring, why should we believe that the President has disclosed all he's known to the 9-11 commission: Whether he war really surprised by the Sept 2001; or did he knew something that triggered the illegal surveillance prior to Sept 2001, but he refused to translate that "concern" or "intelligence" into plans and response?

___ How does the timing of the information related to the "concerns' the President had prior to Sept 2001 -- that supposedly triggered the pre Sept 2001 illegal NSA monitoring -- related to the Aug 2001 PDB on Osama Bin Ladin?

___ Why should anyone believe that the President had "no idea" there was a concern with the Aug 2001 PDB on Osama; yet the President apparently knew something to warrant him to start surveillance prior to Sept 2001?

___ Why should anyone believe that the President had "no idea" what the PDB Aug 2001 memo meant; yet the President was starting illegal surveillance prior to Sept 2001?

___ What did the President learn prior to Sept 2001 that triggered him to engage in illegal surveillance without FISA approval; but the President would have us believe despite the PDB Aug 2001 memo the President had "no idea" of a problem?

___ How does the President explain his Aug 2001 PDB response -- essentially nothing -- yet the President was actually doing the opposite: He had learned of something prior to Sept 2001; he had engaged in illegal surveillance -- how does the President explain his impressions left with the 9-11 Commission -- that he was surprised, not aware of something; yet in truth, the President was engaging in illegal surveillance based on something prior to Sept 2001?

___ What information did the President know abut, above and beyond the Aug 2001 PDB that prompted him to start the illegal NSA surveillance prior to the UAMF and events of Sept 2001?

___ What information and reorientations did the President make about what he did or didn’t' recall about the Aug 2001 PDB; and how do these disclosures square with the known illegal activity the President was engaging in prior to Sept 2001?

___ How many times did the President and Vice President leave the false, misleading, incorrect, materially misleading, or incorrect impression with the 9-011 Commission -- "that they had no idea about something" as it related to the PDB Aug 2001 memo; yet, in truth, the Vice President and President were either individually or jointly in agreement prior To Sept 2001, without regard to any AUMF, that they were going to support illegal NSA surveillance?

___ When did the President leave the false, incorrect, misleading, and materially false representations with the 9-11 Commission on what he supposedly knew or could recollection; but his actions shows he knew something or should have known something that would have prompted the PDB Aug 2001 memoranda to be taken in a serious light?

___ Why was the President interested in supporting illegal surveillance prior to Sept 2001; yet when the Aug 2001 PDB memoranda surfaced, the President and Vice President would have us believe that they were surprised, shocked, and confused about what was going on?

___ Is the President asking us to believe that he made a deliberate decision before Sept 2001 to engage in illegal surveillance for not apparent reason; yet, out of the blue, he and the Vice President are arguing that the legal argument related to that pre-Sept 2001 surveillance cannot be reviewed?

___ How can the President argue that he "out of the blue" decided to engage in pre Sept 2001 surveillance; but that the memoranda related to that "random act" is not connected with any memoranda, document, or other legal note associated with the White House counsel's office, DOJ, or the NSA?

___ When did Brad Berenson review the pre-Sept 2001 surveillance; how was his review memorialized?

___ How as John Yoo involved with the Pre-Sept 2001 surveillance decision?

___ When did Yoo, Berenson, and Gonzalez meet with Addington before Sept 2001 to review the NSA surveillance with Libby and the Vice President?

___ How was this Meeting, decision, and other alleged illegal surveillance activity memorialized, and coordinated with Abraxas, Terremark, AT&T, NARUS, Amdocs, and the intermediaries associated with Verizon and the subpoenas?

___ When was the last time the NSA and GCHQ files related to the Verizon E-mails were scrubbed, removed, saved, or transferred as they related to e-mails in and out of Amdocs, Verizon, and Terremark as they related to data transfers between NSA, Boeing, SAIC, and the rendition activity?

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Yoo incorrectly stated the President had authority to wage war, without accepting that the Constitution constrains the power of the President when he engages in domestic surveillance.

The President does not have broad power to violate the Constitution, or engage in electronic surveillance when that monitoring does not comply with the Constitution, statute, or other standards of conduct.

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Recommendations

Encourage House Judiciary Chairman to get a sense from his peers on the House Intelligence Committee the types of legal arguments DoJ refuses to provide to the House Judiciary.

___ What is the reason his colleagues have not been even a sense of the legal arguments from DoJ for the surveillance activity?

___ Without a disclosure of legal arguments, why should anyone believe that the legal arguments are valid?

___ Why are legal arguments -- based solely on public law and statute, which are not classified -- being asserted as if they are classified?

___ Which agency in DoJ is classifying the legal arguments?

___ What is the plan of Congress to forward for review the opposing legal arguments?

___ what does the Congress plan to do bring this issue before the courts, compel a confrontation between Congress and the President, and have a public discussion in open court the opposing legal arguments related to this illegal activity?

___ Why should anyone believe that the President, who otherwise refused to permit the FISA court to review the activity, is doing the right things when he has changed his position on whether the activity is or is not legal; or whether the original surveillance was or was not consistent with FISA?

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The key issue with the legal challenge is not whether we are or are not at war, but something related to timing. The President is alleged to have ordered NSA surveillance prior to Sept 2001: All legal arguments related to "war on terror" and "new threat" and "national security" are meaningless when these legal justifications did not exist prior to Sept 2001, and there was no AUMF.

Put aside the Administration’s arguments over whether the AUMF did or didn't do something to permit broader surveillance. The AUMF did not exist prior to Sept 2001; on the narrow issue of what surveillance was occurring prior to Sept 2001, there is no basis to argue that the legal issues and arguments cannot be disclosed for national security reasons. The "national security concern" -- arguably linked with a concern with terrorism -- did not exist prior to Sept 2001: Sept 2001 events had not occurred.

___ How does the President explain the legality of his surveillance before the Congress passed the AUMF?

___ What were the legal arguments and memoranda before Sept 2001 that were made after the President made the decision, but were memorialized prior to Sept 2001?

Memoranda when it relates to Executive power can be protected if it is unrelated to illegal activity; and the memoranda are before a narrow, lawful assertion of executive power. However, once the President usurps power, or memorializes in post-decision memoranda findings, conclusions, and legal arguments, those memoranda are discoverable. Broadly, once the President usurps power and asserts non-delegated legislative and judicial power -- as evidence by his unlawful rule making and judicial decision not to assent to the FISA court before Sept 2001 -- the President is arguably engaged in illegal activity, and the memoranda before the illegal decision -- cannot be protected.

___ What is the plan of the House Judiciary Committee to review the legal issues related to Executive Privilege;

___ To what extent is the President attempting to invoke executive privilege on decisions unrelated to executive power;

___ How is executive privilege being asserted on memoranda that are related to unlawful usurpation of power;

___ What is the case law and legal theory of the Legal Scholars as it relates to protection for a President's decisions, but those decisions and memoranda are not related to his narrow executive power;

Once it is shown that the President’s illegal surveillance was occurring prior to Sept 2001, it is not relevant whether the President views the AUMF as being legal, unlawful, broad, or narrow: The AUMF did not exist.

___ Which legal arguments -- prior to Sept 2001 -- was the White House and DOJ relying on when it permitted this illegal surveillance in advance of the AUMF?

___ What legal principles, rule, or precedent is the President relying on to not release legal arguments related to his pre-Sept 2001 monitoring?

___ What is the basis for the President to assert that the legal memoranda -- arguably linked with illegal decisions, illegal usurpation of power and non-delegated judicial and legislation power -- can be protected by Executive Privilege?

___ How does the President argue that actions -- unrelated to lawful executive power, but linked with illegal usurpation of judicial and legislative power -- can be hidden, classified, or not disclosed when that activity appears to be illegal?

___ How was the DOJ Staff discussed the issues of ORCON, and how the President and DOJ working with the White House counsel has attempted to suppress, cover, hide, and not reveal evidence of unlawful activity which ORCON does not permit the President to classify?

___ When does the DOJ Staff plan to review the legal issues related to disclosure of classified CIA agent Plame data -- in terms of ORCON violations, and disclosure of classified information which the President did not classify -- and discuss how that President was able to classify data, memoranda and other things related to pre-Sept 2001 surveillance?