Constant's pations

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

Monday, March 12, 2007

Gonzalez Playing Stupid About Illegal Activity He Oversaw

The President and AG Gonzalez are lying to Congress.

We know this because of the testimony AG Gonzalez provided to Congress 6 Feb 2006. In that testimony, the Attorney General repeatedly stated "Not this program" indicating clearly there were "Other programs".

Small problem: The DOJ IG found problems with DOJ staff inappropriately giving access to telephone companies without warrants.

Yet, the President and Attorney General have openly admitted that the President's surveillance activity did not meet the FISA requirements.

* * *

The President's "NSA program" is incorrectly characterized. It does not involve only the NSA and its contractors. It is a broad, multi-agency operation.

It is incorrect to pretend that the President’s fatal admissions over the NSA activity have no relevance to what the DOJ IG found in re NSLs.

The same Presidential "Program" that was violating FISA, was also a program well known to the DOJ Staff and Attorney General.

* * *

This Attorney General and President are feigning shock over the DOJ IG results. We know this because the President and Attorney General, rightly or wrongly, asserted they alone could oversee the NSA surveillance; and that they could work outside the FISA court.

The FISA court does not only deal with the NSA. It includes the JTTF, a multi-agency task force designed (not necessarily effectively managed) to conduct investigations.

It is absurd for the AG to pretend that the DoJ IG results were "new" or that he was surprised. To the contrary, the President and Attorney General repeatedly indicated there were other programs, and that the President and Attorney General were adequately overseeing this process. They were not.

* * *

The warrant process is a simple one. It requires law enforcement to outline their conclusions and justify to the court their conclusions. The request for a warrant is designed to focus law enforcement’s attention on facts, the law, and their legal obligations.

This Attorney General has been reckless. He did not ensure the FISA court was involved - as required -- and repeatedly assured the public that the Constitutional safeguards were in place -- there were not.

* * *

Congress, DoJ IG, and DoJ OPR need to do the following:

___ 1. Get a list of all "programs" the Attorney General was referring to in his 6 Feb 2006 Testimony to the Senate Judiciary Committee;

___ 2. Confirm from the Attorney General in writing under penalty of perjury, that the list of all "programs" is complete, there are no exceptions: "Identified programs"

___ 3. Broaden the oversight to confirm [a] each of the identified programs matches [b] the programs the DoJ IG and DOJ OPR are auditing

___ 4. Look for patterns of conduct, violations, and exceptions which were used in one program, and see how these practices were generalized to cross all programs.

* * *

Under the unitary theory of executive power, the President has total control over all the assets under his command. He has total control over the NSA and JTTF forces.

It would be reasonable to expect that if the President was overseeing the NSA surveillance, outside the FISA court requirements, then he would have the same "oversight" over the JTTF issuance of NSL.

Again, AG Gonzalez testimony from 6 Feb 2006 indicates that the President and he were well on the same sheet of music, understood there were multiple programs, and that things were being taken care of.

The problem with the NSLs, as AG Gonzalez in 2007 would have us believe, is that he was surprised by the DOJ IG findings. No way. He was intimately involved with the NSA contractors, well knew the NSA contractors were being given waivers, and well knew the President knew the NSA surveillance oversight was not meeting the FISA requirements.

The President openly admitted that the "NSA surveillance program" did not meet the FISA requirements.

* * *

Now for an analogy. Recall what Addington said about the Eastern European Rendition. Once Hamdan was issued, Addington argued that changing the prisoner status -- by moving them from Eastern Europe to Guantanamo -- that change in position would be an implicit admission that the original treatment and procedures were illegal.

Same goes with the President's NSA surveillance: Once the President "accepted" that the FISA court, not the President, had the legal authority to oversee the FISA warrants, then the President was admitting that the original procedures were wrong, illegal, and contrary to the Constitution.

* * *

Back to 2007 and the DOJ IG report on NSLs. Here’s the problem: Once the President and Attorney General jointly accepted the requirement of FISA, and that the FISA court should have been doing something, this raises a question about the "other programs" Gonzalez was referring to.

Again, with a single executive overseeing all activity, he has the responsibility to make sure all the actions are lawful.

Here's the problem with the US Attorneys. The President is openly admitting that his appointments and nominations were illegal and contrary to the Constitution. Regardless what Congress may or may not have put in the Patriot Act, it was no lawful for the President to have appointed the Attorneys that way.

* * *

The problem this President and Attorney General have is that they want us to believe that the information from the DOJ IG audit of NSLs is news, a surprise. This is not to be believed.

As with Saddam, the point here isn't that the Congress spends endless months reviewing the evidence of "past crimes," but focus on the narrow crimes the GOP Senators will support warrant conviction.

* * *

Based only on the information about the US Attorneys, FISA, and the DOJ IG audit of the NSLs is the following, all impeachable offenses:

1. The President and Attorney General have violated the law

2. There were known procedures which they ignored

3. They usurped judicial powers

4. Despite classifying programs and keeping them secret, they absurdly claim that they had no idea about things that they alone claimed they had total control

This does not add up.

* * *

Taken in this new light, here are the problems for the President and Gonzalez:

___ There has been no multi-agency audit. The only audit we're talking about is the DOJ IG audit into NSLs. Yet, the President's "program" relied on multi-agencies and multiple contractors.

___ The same flawed oversight of the Iraq invasion and reconstruction effort remains in force. The President and Attorney General cannot credibly argue that he has better management of non-combat operations; but that military commanders were given the best leadership. It's the same process: Whatever failed in Iraq is presumed to be linked with the same flawed, reckless oversight of state-side operations.

___ FBI agents were doing things which the President and Gonzalez knew were part of the "classified programs." There were no audits of things that were presumed would remain secret.

___ Things were being done without adequate court oversight. This is illegal. It doesn't matte whether the issues were narrow to the NSLs, to the NSA surveillance, or to other things. Open, fatal admissions show the President well knew the FISA court was not involved. The issue is does the FISA court and Congress know what else the President was not adequately coordinating. These are conscious decisions by the President not mistakes.

___ Gonzalez has DOJ IG and DOJ OPR as staff assistants to help him manage and succeed. Yet, the President and Gonzalez have openly admitted that they have blocked DoJ OPR from reviewing matters. The block an auditor Gonzalez had to know what was being blocked; and have confidence that his block would hide the area of concern, illegal activity, or other things he did not want disclosed. Again, this is not a mistaken, but a deliberate effort.

___ Gonzalez had specific legal requirements under the Constitution to only issue warrants. These were modified with the FISA requirements; and the DOJ and Presidential executive orders were standards to fully implement the Constitutional requirements. These administrative and executive orders are legally binding, and cannot authorize unlawful or unconstitutional activity. Because Gonzalez and the President blocked DOJ OPR, and they avoided the FISA court, they knew exactly what they were hiding; and knew what had to be hidden to avoid any detection. Again, this is not a mistake, but a deliberate effort to thwart the Constitutional requirement. It does not matter that the "procedures" were unclear; the truth is the opposite: Gonzalez and the President were very clear what they wanted to do -- violate the law, not get caught, and specifically obstruct lawful inquiry into DOJ Staff counsel conduct as required by law.

___ DOJ IG discovered what the States of Maine have been told they could not review: That there were arrangements between the DoJ and Phone companies. Previously, the courts were fraudulently told by DOJ Staff counsel that this activity was "classified". No, the activity, per DoJ IG, has nothing to do with classified activity, but procedures which did not fully comply with the law. This is the same as having committed fraud upon the court, knowingly lied to the court about illegal activity, and unlawfully using privilege to hide unlawful activity from discovery. This is illegal. Congress, DoJ IG, and the DOJ OPR need to expand the review of the DOJ contact with the phone companies and explore to what extent the States of Maine, Missouri, and New Jersey were thwarted from reviewing issues which were not lawfully classified, but, as DOJ IG concludes, were illegal: Inappropriate contact.

A. What was this contact;

B. How does the DOJ contact with the phone companies with the NSLs square with the state level concerns that the NSA gave access to the phone companies

C. To what extent are the President and Attorney General hiding one side of the coin which DoJ IG says was inappropriate contact

D. Does the President and Gonzalez understand that they cannot claim these issues are classified when the same program related to the NSA was also inappropriately contacting the phone companies on NSLs.

___ These issues are not isolated to the FBI. The Presidential illegal activity crosses multiple agencies. Mueller is taking the fall for something the Attorney General and President well knew was illegal. The President has openly admitted that his activity did not comply with FISA. Mueller and Gonzalez must have known this; and well understand that the DOJ IG revelations in re NSLs is only the top of the iceberg of problems of the larger Presidential illegal activity connected with the phone companies, intermediaries (supposed to be) processing the subpoenas, and billing companies.

____ FBI agents were self-issuing NSLs, amounting to a warrantless search. All data, evidence, and other things related to these illegal searches can be suppressed. The President and Attorney General, as with Guantanamo prisoners, have jeopardized many cases. TO what extent these were based on fishing expeditions or retaliation against political opponents remains to be seen. At worst, the FBI was issuing NSLs to go on fishing expeditions; and the Members of Congress were using this power to ram information into the US Attorneys office.

A. How many members of Congress knew the FBI was self-issuing, and abusing, NSLs so that a Member of Congress could provide "reliable" information about an opponent to get the FBI to go on endless investigations chasing phantoms;

B. To what extent were the results of these warrantless NSLs-related investigations used to punish people by putting them on a no-fly list: This would amount to an assertion of judicial power; the right to travel is related to commerce. The President and Attorney General appear to have crafted a system of executive-punishment outside court review to target, punish, and impose justice on the US public for their lawful assertion of rights in opposing the President. This suggests the "other program" the AG was referring to amounted to a defacto use of FBI-JTTF NSLs to gather evidence, then impose consequences through DHS onto travelers. IT remains to be understood which contractors were assigned to process this information, but the AG is playing stupid about this software development effort and data management function.

* * *

Mueller's question of, "How could this happen?" is meaningless drivel. He knows exactly "how it happened" -- he was following illegal Presidential orders to violate the Constitution; did not remove himself; and thought nobody would find out about his recklessness which he has openly admitted to.

Excuses of training and oversight are meaningless. It was the "Training" excuse which JTTT and NSA relied on to conduct illegal surveillance, then, when challenged, claim the offending behavior was not actionable because it was a "training" situation. Mueller cannot credibly claim the problem is "training" when "training" is the excuse to avoid accountability for illegal activity. It is not a reason but a smokescreen.

Talking about the "audit" system is meaningless. This President and AG designed procedures to avoid audits: Ignore FISA; go around DOJ OPR; and not respond to Congress.

* * *

It is not reasonable for Gonzalez to blame Mueller for things the AG and President jointly agreed to do: Not follow the law; ignore requirements; and fast and loose with the Constitutional requirements.

Gonzalez is acting in a reckless manner. As with the US Attorneys who were getting blamed, Mueller is in no position to take all the blame for something the President and Attorney General openly admitted did not comply with the FISA requirements.

Gonzalez can say he "believes" anything he wants. The issue is whether that "belief" is believable. IT is not.

It is a major problem when DOJ Staff counsel attorneys fail to oversee a program. The issue is to what extent they were complying with Presidential orders, directive, and agreements to not do what they should have done: Ensure all operations were consistent with the law.

Gonzalez is pretending that DoJ OPR has to "find out" something. No, Gonzalez already knows the answers. The question is to what extent DOJ OPR is going to be blocked again; and how the larger illegal activity touching NSA contractors and phone companies is hidden behind other walls.

Gonzalez is pretending that "someone else" is responsible; or that the procedures were a surprise to him. Incorrect, he was actively involved with the decisions to ignore the Constitution, thwart FISA, and not meet the legal requirements.

* * *

This President actively directed US government contractors and personnel to ignore the law, violate policies, and not fully assert their oath of office. Those who did not cooperate with targeted, as evidenced by the US Attorney firings.

This President rewarded people who ignored and did not follow the law and guidelines. There was an institutional culture of not solving problems; and refusing to create procedures which would ensure operations were fully consistent with all legal requirements. This sis not a "mistake" of the FBI; it is recklessness by the President and Attorney General in their decision to violate the law. Mens rea is well satisfied.

Their intention was to violate the law; and their motivation was to win elections and amass more power to impose their warped world view around the globe.

* * *

The President's Intelligence Oversight Board has been arguably reckless in not independently reviewing these issues. Congress might as well eliminate all funding for the PIOB and find another mechanism to do what this President has ignored.

* * *

The problem is related to lack of meaningful, timely financial costs on the phone companies for them doing illegal things. When the FCC requires something, radio and TV stations can be fined. Technology is crated to meet these requirements.

In the case of NSA, the technology existed, but this President chose to ignore the law.

* * *

____ How many other illusory "emergency" situations were devised?

____ What method is in place to ensure there is no abuse: The courts; what is done when this method is ignored?

This Congress says that impeachment is off the table. Fine. Then the Speaker is admitting that despite written law, there is no enforcement mechanism. This violates the Constitution and the States' right to have a republican form of government. The Speaker has arguably violated her oath and should be prosecuted.

* * *

That there are "accountability" and "review" problems means the President -- under the unitary theory of executive power -- has responsibility. Time for Congress to impose the lawful consequences on this President.

It is absurd to suggest the President has any basis to ignore or oppose "restrictions" on anything -- he isn't following the existing requirements. For him to suggest that he will, in exchange for DNC concessions, "not oppose" something is meaningless.

The DNC is foolish for agreeing to any concession in exchange for the President agreeing to do what he is required to do: Fully enforce the law with policies, procedures, and oversight to ensure compliance.

___ What did the DNC concede when it "agreed" that the President would do or not do something as it relates to NSLs, oversight, procedures, or something else.