Constant's pations

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

Saturday, February 10, 2007

Maine PUC Litigation: Court Botched The Ruling

The Court botched the ruling on Mr. Cowie's complaint against Verizon. ( h/t )

Stuff like this materially undermines confidence in the US legal system, the legal community, and the judicial officers.

* * *

As background, Cowie is the lead plaintiff in the litigation against Verizon. Cowie is a former employee with the regulators overseeing the power industry, and he has great insight into the regulatory requirements which Verizon must meet.

Cowie is the lead plaintiff in the case against Verizon and the NSA challenging whether Verizon, as a contractor regulated by Maine, did or did not violate State Privacy Statutes in releasing information to the NSA, or making available to the NSA unfettered access to the private citizen's data which should have been protected.

Absurdly, the court ruled that the NSA issues, because they were classified, could not be reviewed by the State regulator. This is non-sense. Bluntly, the courts’ ruling is circular. The information, if it was legally classified, is not something PUC needs to review; it only needs to review the court ruling on whether the illegal activity was or was not ended. Without a ruling or court order, we have to presume the illegal activity could continue and violate the State Privacy Statutes.

* * *

Let's review a couple of things which a legal officer, especially a judge, knows full well. First, NSA was engaged in illegal activity before Sept 2001; and DoJ argument that the NSA surveillance activities are classified is a legal assertion, not an unchallengeable fact. ORCON rules prohibit the classification of illegal activity. The court essentially accepted -- without credibly evidence or showing -- the assertion that the NSA, because it was engaged in classified activity, was not reviewable.

Well! SO much for having an independent judiciary. Based on the public evidence, and the fatal disclosures of the Verizon General Counsel -- who failed to deny that Verizon had given NSA access to the Verizon equipment/facilities -- there's every reason to believe that there's something wrong.

Second, putting aside the bungling by the Verizon General Counsel, we also know based on the New Jersey litigation that there's evidence NSA had engaged in illegal activity prior to Sept 2001.

Third, Negroponte has shown concerns about the illegal activity, something which may get brought up during his confirmation hearings for State.

* * *

Let's consider the courts flawed thinking on the classification issue. Essentially, the court is arguing -- circularly -- that because the Maine Power and Utility Commission does not have a clearance, and is not the NSA, that the Maine PUC can't review the material or make legal arguments. Duh. That's why we have a court: To review this material, and make a judgment.

However, the court didn't stop there. Rather than say, "This court will review the information in camera, and independently review the material," the court relied on the status of the lead plaintiff to whether the court will review the defendant's conduct and the statutes. That's silly.

All courts can review anything, especially when there are classified reviewing procedures for federal courts. It is irrelevant that a party to the litigation does or does not have access to classified material. The issue is whether the court will or will not -- as an entity -- exercise oversight and review the material.

The court essentially asks the public to believe that because one of the parties to the litigation lacks the requisite status, clearance, or other irrelevant criteria, that the court also lacked jurisdiction. [This isn't what they said, but in effect they're asking us to believe that the plaintiff standing is a function of whether the plaintiff can stand in the court to review classified material, not, as it should have been, whether the NSA had or had not violated the law.]

Illegal activity, regardless its connection to NSA, cannot be legally classified. Rather than review this question, the court accepted -- absurdly -- the assertion without proof, that the activity was legal. This is something that the NSA can be compelled to prove, and remains a core dispute with the NSA.

In effect, the court asks us to believe that the court, because it refuses to rule on a legal issue that it has the power to review -- whether the NSA activity was or was not lawful; and whether it was lawfully classified -- states that nobody else can do what the Judiciary has refused to do.

Talk about rewarding incompetence, recklessness, and inaction. This is wholly unresponsive conduct. Courts regularly grill in public criminal defendants for minor violations of "common sense" and "failing to do what is responsible." The judge on this court needs an admonishment:

- Failing to use credible legal arguments, sound reasoning;

- Refusing to credibly show that they are asserting their oath;

- Refusing to solve a legal problem which the Judiciary is uniquely positioned to solve;

- Engaging in a course of conduct that materially undermines public confidence in the legal community, court system, judiciary, and US government.

In so many words, this is non-sense.

* * *

Overall, I'm not impressed with the legal community, especially the courts and DoJ Staff on this one. Let's take the broad view:

1. This activity is illegal;

2. The illegal activity began before the excuse of 9-11; and

3. The status of a party to litigation has no relevance to whether the court will or will not review classified information; or decide whether information has or has not been illegally classified as it relates to unlawful NSA activity.

I find it ridiculous for any court to assert in public that the court will or will not do something based on whether a party to litigation does or does not have authority. That is irrelevant: The court does have authority to review these matters.

* * *

I'm livid. The American legal community continues to walk on thin ice. The DoJ Staff has sat on its rear end making excuses for illegal activity, and would have us believe nobody can review these legal matters.

I don't know what's gotten into the heads of the court officers. I'm especially amazed that the non-sense from DoJ seems to get taken in as if it were gospel.

Bluntly, the court has the responsibility to review these matters and the evidence; whether PUC does or does not have access to the classified material is irrelevant. Information can be redacted. The only information Maine PUC needs is whether Verizon has or has not broken the State law. It doesn't matter how the NSA does this -- that can remain secret.

But what cannot remain secret, and remains reviewable by Maine PUC is the fatal admissions by the Verizon CEO; and the open knowledge that the US Attorney General has lied to Congress about when changes to FISA were or were not incorporated. This open information needs to be contrasted with what Verizon, the intermediaries, and NSA are doing. No classified information needs to be reviewed to make adverse inferences, especially, as the case appears here, where activity has been illegally classified in violation of ORCON.

Someone in NSA correctly reported illegal activity; and nothing the US government has done or said in response to the original NYT disclosures suggests that the reports are wrong. Rather, all indications are that the reports of illegal activity were reliable, yet the US judicial system makes excuses not to slap the government.

Talk about a breakdown in law and order. What's this government's response? It's targeting the media for correctly reporting on illegal activity that started before Sept 2001, and unrelated to the excuse of the week. The President made a decision before the events of Sept 2001 to engage in illegal activity. No court can credibly defer to the President or claim the NSA has a good motive for doing this. If there was a good motive, that motive should have been presented to the FISA court. It was not. If there was a good motive, Gonzalez would not have lied to the Senate Judiciary. He did lie. If there was a good motive, the GOP would have quickly displayed the evidence and secure additional gains in November 2006.

This isn't adding up at all. This is not a partisan issue. it is a matter of criminal law which appears to be related to an effort to transmit data to then support war crimes in the form of rendition and other abuses in violation of Geneva. These are very serious issues which, when the Nazi judges refused to confront them, resulted in their lawful adjudication as war criminals and they were legally executed after the war for failing to prevent war crimes. Not talking about the policy makers who refused to respect the laws of war, but the legal community including judges and attorneys who were legally kicked in the rear end for not enforcing Article 82 which requires Geneva to be protected.

This NSA activity is related to the 5100.77 laws of war program which Stimson has fatefully admitted is getting ignored, despite Hamdan and the admission that the prisoners in Eastern Europe were not being treated as they should have been.

My ass a court isn't going to be held legally responsible for failing to adjudicate these matters, especially when the States and plaintiffs like Cowie are thwarted from doing what lazy, arrogant, reckless Members of Congress, DoJ Staff, and Judiciary refuse to do: Full enforce the laws of war, especially when it comes to the illegal use of data to support war crimes and prisoner abuse.

* * *

The reason the litigation is spreading at the State level is because the Federal Government, US Attorneys, and other national-level oversight failed and did not do their job. The way forward, regardless the outcome of this case in Maine is to examine what is going to be done to prevent this from happening again.

The issue is not whether the NSA can or cannot do its job -- it can. The issue is whether that monitoring will or will not be consistent with the law, especially before the so-called excuse to ignore the law.

It does not pass the logic or smell test when the court, despite the known illegal activity, kicks the case out of court and refuses to do what it can:

1. Enact procedures for the court to make a ruling;

2. Decide a way for the Maine PUC to get access to the information it needs, while protecting the classified information

3. Relying on precedent to disentangle the classified and non-classified information;

4. Act as a credible defender of the Constitution, and challenge the illegal activity;

5. Make it clear that the status of a party to litigation with respect to classified information is irrelevant to whether that party does or does not have an obligation to enforce the State law.

* * *

I view the Federal Court decision as challenging the State right to enforce the State law, especially when the court reviews to focus attention on the needed issues:

A. What did Verizon do;

B. Which illegal activity has been illegal classified;

C. Which classified activity violates the ORCON guidelines;

D. What changed between the original illegal activity in Maine, and the subsequent changes which the Administration recognizes the FISA court can review.

It's a fatal disclosure for the White House to openly admit that the original surveillance was not lawful; and that the FISA court had been illegally prevented from reviewing an illegal use of military equipment against non-authorized targets, especially when there were provisions to retroactively secure a warrant.

* * *

What's disturbing about this litigation is that there are many technical details that are unknown and classified, but are not relevant to examining the simple legal issues:

A. What was done;

B. Who knew about it;

C. What was the law;

D. How was the law violated.

It is irrelevant that the fiber optic system meshes with the Embassy tracking system; or that firms in Florida have special equipment that allows them to use splitters to access the fiber optic system, download data, and track. The core problem is much subtler: Until the known illegal activity is reviewed in court, there's no incentive for the Administration to stop the illegal activity it started prior to Sept 2001; and which Negroponte remains concerned.

Again, as with the Iraq WMD data, we have nothing from Senator Roberts [R-KS] suggesting he was diligent in his oversight. At best, despite claims by DoD IG that [paraphrasing ] "nothing was wrong" with the DoD activities, there's no reason to have confidence that the Senate Judiciary or Intelligence Committees reviewed these materials.

What's most baffling about this case is that the Congress and Judiciary, despite the admitted change in position by the Administration, have collectively deferred back to the President. Excuse me, this is a republic, not a monarchy.

Cowie and others at the State level are the only ones who are credibly challenging this illegal activity.

* * *

There are some serious questions in my mind:

1. TO what extent has the court violated their judicial oath to protect the Constitution;

2. Why was there not provision for the court in the Maine PUC litigation to have a special master screen the data, ensuring Maine PUC only gets access to non-classified data.

I see nothing before us to suggest that Maine PUC is asking to decide whether to stop or start NSA activities. Rather, the issue is whether the Federal courts will or will not let States enforce State law, especially when the Federal Government refuses to prevent violations of the Federal Constitution.

* * *

The most outrageous thing about this litigation is that the Federal Court, because the US government has failed to comply with the law, has at its footsteps an aggrieved party who must rely on another set of laws to, in a round about way, force the Federal Government to wake up.

The court is making excuses not to ensure the US Constitution is protected. This is not acceptable.

It is outrageous that the US government will parade itself before the world community saying, "Look how great democracy is," while the US government -- as a single entity -- does the opposite and shows how awful the oversight system is.

* * *

Indeed, this is going to get appealed, and that's the issue: It shouldn't take this long to resolve this issue.

Again, taking the broad view: Gonzalez has already lied; and the US government recognizes the FISA court jurisdiction on this issue. Had there not been pressure, the illegal activity would continue and the FISA court would have been shut out.

The way forward is to determine, despite the change in position, what will be done to prevent this from happening. Again, broadly, the system of checks and balances is there to constrain power, not eternally make excuses to do nothing about the abuses of power.

In Congress, the Committees and Staff on both sides of the aisle were arguably reckless in not reviewing the Title 28 and Title 50 exception reports as they related to the NSA issues; and we see little evidence the DoD, CIA, or DoJ IGs were independently doing what they should have. At best, the President's blocking of DoJ OPR shows that the NSA activity was known to be illegal; but the President didn't want reality to fit.

Again, relying solely on the DoD IG inspection report on the WMD issue, we're being asked to believe that nothing was wrong, yet there were many people trying to delay something that should have been good news before the election. This doesn't add up at all.

* * *

As stated before, this is being appealed as it should. However, the public needs to fully comprehend what is happening:

1. The court is using circular reasoning to not review a legal matter;

2. The Federal Government failed to review this matter;

3. The Administration has admitted, in effect, it was violating the law when it recognized the FISA court had not been legally removed from the oversight;

4. The oversight of this activity has been illegally consolidated under the Executive Branch, despite Congressional and Judicial roles under the FISA program;

5. Despite the Federal Government failing to review these issues, the States are being thwarted from doing what the US government refuses to do -- impose consequences, engage in oversight, and assert the rule of law.

* * *

The court is essentially asking We the People to believe that because everyone has messed up, that we should collectively trust the NSA and President with secret activity. No way. That is not something the court can impose, require, or credibly leave as a mess.

That's the problem with this NSA illegal activity: We have a clear process, it's been ignored, and other parties with legal standing have been told that the failed process doesn't include them. That's incorrect. Once the States no longer have a guarantee that the Federal Government is enforcing the law, then by default, the States may legally assert their right and compel judicial review.

The court's failure is the absurd outcome:

1. Doing nothing to prevent illegal activity again;

2. Doing nothing about the failure of the Federal Government to respond;

3. Doing nothing about the legal option to have a special master to organize the data so the court can review the legal issues;

4. Doing nothing to assert judicial power, as it should, against illegal usurpation of judicial power by the Executive when he engaged in illegal judicial oversight under his self-monitoring program;

5. Doing nothing to find a remedy to this problem;

6. Doing nothing to inspire confidence in the judiciary, legal community, or the rule of law.

* * *

The frustrating part of this litigation with the NSA is the recklessness the US government, especially the DoJ Staff, have shown toward the US Constitution. Forget 9-11 for the moment. Focus only on the illegal activity prior to 9-11; and the known NSA technical abilities which existed; and the knowledge DoJ Staffers had of the illegal activity.

What the court is really asking us to believe is that despite the illegal activity being an open secret, the US government -- all three branches -- isn't going to protect the Constitution; and that State-level officials have no role to assert state law, especially when the Federal Government refuses to enforce the law and, in effect, deprive the States of their guaranteed right to an enforcement mechanism.

* * *

My view: This judge is foolish, on thin legal ground, and has done little to inspire confidence in their profession, the judiciary, or the benefits of a republic. Power is separated to ensure it is checked. This judge asks that we separate power and ensure illegal activity is never reviewed, even by those who have little power.

The problem is that Maine PUC does have the legal right, power, and duty to do what the US government, Members of Congress, the DoD-NSA-CIA-DoJ IGs refused to do: Use all lawful options to assert the rule of law, compel Verizon to explain why it is violating the law and how it was given access, and force the NSA and White House to take punishment for its defiance of FISA>

* * *

It is unacceptable that the American citizenry, on top of being abused, is forces to go to these measures to find out the US government -- which is recklessly ignoring the law -- will prevent others from doing what should be done: Fully asserting power to compel all to assent to the law.

If Verizon was doing the right thing, then all options by the Qwest CEO -- who refused to cooperate with this illegal activity -- should have been punished. The lack of sanctions on non-cooperating parties indicates that Verizon had the duty to do what Qwest did: Refuse to cooperate with illegal activity.

There are the issues of the intermediaries who process the paperwork for subpoenas; and the issue of the DOJ Staff time cards. Once the court says, "We'll do nothing" there's no slap on the hand for the DOJ Staff who have been doing non-official work when Gonzalez said they were too busy; nor is there a wake up call to the intermediaries who process the subpoenas to ensure they fully follow the law.

Any Attorney General who secretly makes an assertion to a contractor -- which the FISA court is illegally deprived the right-power-authority to review -- that something must be done -- there's a problem, especially when that assertion is not uniformly accepted; nor are inconsistent responses to that assertion are not uniformly punished.

Again, the point is that we don't need to review classified information to know that there is a problem: Qwest CEO refused to cooperate, but was not punished. That lone shows us that the legal foundation for the plan was dubious; and that the plan, when it was thwarted, could not be asserted because it had no legal standing relative to Qwest's superior duty to enforce the law, especially when the US government secretly hoped to violate the law without sufficient warrants.

* * *

In the wake of the Federal Court ruling on the Maine PUC questions about Verizon and the NSA, I would encourage you and your friends to review with Congressional Staffs the following issues:

1. What's going to be done to prevent this from happening?

2. Why aren't there procedures to resolve what will be done when the FISA court is illegally circumvented?

3. What Federally protected rights, standing, procedures, and others things need to be institutionalized -- not just by Statute, but by Constitutional reform -- to ensure the States remain a viable check on reckless defiance of the Constitution by US government officials in all three branches?

4. When are we going to get a credible accounting of how the illegally captured data was or was not used to support war crimes, abuse, or other mistreatment of American civilians?

5. What role did Verizon play in providing information it knew, or should have known, was illegally supporting war crimes, illegal rendition, and other violations of the laws of war?

6. What is to be done when there are specific cases of war crimes and there's is a link between US government data acquisition and that illegal activity, but the courts refuse to challenge the illegal results, the means by which the illegal activity was supported, or the parties instrumental in carrying that illegal scheme into effect?

7. Who's going to take a broad, legal view of the NSA issue: How was the contracting and intermediary party complicity with war crimes to the extent that illegally captured data was used to target innocent civilians, engage in prisoner abuse, or put into effect violations of the laws of war and US Constitution?

* * *

Again, the remedies to this problem is to lawfully destroy Congress, break up the Executive Branch, and shift the oversight and investigation responsibility into new sectors.

Putting aside the needed New Constitution, the core problem -- which this court refused to confront -- is what is to be done when the US government collectively refuse to enforce the law, and the States are the last party willing to defend the US Constitution?

This court essentially told We the People -- "put up with it." No way. This court started something it cannot finish.

* * *

This is what I want to see:

1. A discussion on impeaching this Judge for violating their oath;

2. Get this judge grilled to force them to explain why there were no options to review this classified information in secret;

3. Get a clear explanation from this court why a State level entity -- when confronted by recklessness in the Federal Government on issues of FISA, war crimes, and Geneva violations -- is not permitted to do what the US government must do, but refuses to do.

This is not over. All Americans should make it clear -- We the People reserve the right to lawfully discuss, challenge, and do what we legally are able to do, especially when this Federal Judiciary collectively says, "We aren't going to do our jobs." Wrong answer.

* * *

We the People need to discuss the remedies and solutions to this problem.

__ What is to be done when the US government refutes to enforce the Constitution and blocks the States from doing what the US government will not do?

___ What is to be done when illegal activity is unlawfully classified, but the courts refuse to challenge that classification?

___ What is to be done when judicial officers use circular reasoning to avoid confronting a legal issue?

___ What is the required reform to the Statute to compel the US Government -- not a private citizen -- to fully account for the original wrong doing despite the last minute change in position [In effect, the change means the original position was wrong]?

___ How are We the People going to have confidence that legal issues like this are timely resolved, not suppressed then delayed?

___ What credible legal sanctions -- above and beyond what the Congress, Judiciary and Executive refuses to enforce -- need to be institutionalized as a Constitutional requirement ensuring the US government cannot make excuses to avoid enforcing the US Constitution?

* * *

When I read the courts refuse to permit the States from asserting power, and are, in effect, enabling tyrants, I am not patient nor do I have any tolerance for the arrogance of the US legal community.

This DoJ Staff has waved the Constitution as if it were a bible, but it asks that the world ignore it is on fire.

We the People need to lawfully work to strike down the DoJ Staff, ensure the American legal community is aggressively disciplined, and make it known to our peers and future generations that this lazy, arrogant, reckless legal community needs to be disciplined in ways it cannot imagine. Self-regulation has failed. Constitutional reforms are needed. There are legal solutions to this problem, especially when the American legal community has let this mess drag on for this many years.

Responsive government means timely protecting the Constitution, not making excuses to abuse power, then delaying resolution for years. This is not impressive.

No American should be surprised why foreign fighters take up arms against the US government: The mess We the People are forced to endure are unacceptable; all foreign fighters who refuse to fight this non-sense, especially when the US government remains unresponsive to the rule of law, need their head examined.

* * *

This courts ruling makes it appear as though foreign fighters have a reasonable position in taking this dispute to the only form the US government might respond: The battlefield.

The fact that the American legal community has failed, and that the DoJ Staff has not been legally punished, yet the abuse of power continues, is a stunning indictment of the American system of governance.

All Americans should have confidence that this problem can be solved. The issue is which lobbyists are spending how much money to further entrench a system foreign fighters reasonably view will only change if it is lawfully destroyed on the battlefield.

American citizens, We the People do not have to put up with this non-sense. These legal results are absurd. They defy the law. The are unwarranted. The results impermissibly reward violations of the Constitution. It remains to be understood to what extent this court, in refusing to permit States from asserting their right to demand a republic, have impermissibly permitted the US government and contractors to impose war crimes on American citizens.

It remains to be understood whether this court is ultimately adjudicated to have been complicit in failing to protect the Constitution, and not doing its moral best to ensure the Geneva Conventions and States Rights have been fully enforced. These results are not acceptable, especially when the US combatant commanders recognize foreign fighters are mobilized by absurd US legal rulings.

The American legal community needs a wakeup call. We the People need to craft a New Constitution that will compel the legal community to assent to Our Will, not the excuse of remaining loyal to tyrants. Constitutions check power. They do not permit the tyranny to be contracted to other parties. Such a contract is illegal, as this court failed to comprehend. What is not lawfully stopped will continue; what continues, despite war crimes, emboldens foreign fighters to reciprocate. The longer this goes on, the fewer friends America has, and the more the world is likely to take this dispute to the battlefield.

___ When are the funds for this illegal activity, which the courts refuse to review, going to be shut down?

___ Despite the failure of the GOP to “share the good news about nothing being wrong,” what’s the sanction by We the People to impose consequences on the US government?

___ How many US Attorneys have to be disbarred for failing to protect the Constitution?

___ What is going to be done to end this illegal rebellion against the Constitution by Congress and the President?

___ When are the DoJ Staff counsel complicit with this illegal activity going to be investigated for disbarment?