OVP Implicitly Claims Evidence of Illegal Activity Does Not Need To Be Retained

By testing - September 24, 2008, 1:20PM

Vice President Implicitly Admits To Not Fully Retaining All Legally Required Documents under Geneva, FISA

There's been some interesting give and take between the Vice President and Congress overs records retention. CREW attempted to review some documents, and OVP balked.The court essentially confirmed our suspicions: The OVP has parsed the legal language, as was done with Geneva, FISA and the Constitution, to justify hiding evidence of illegal activity. It will be interesting to compare the OVP records retention-compliance with the disclosures in the DoD emails.

Member of Congress Connection

Once Congress quickly moved on the financial issues this last week, Congress has a problem with Geneva:

The war crimes prosecutors could reasonably conclude Congress, in quickly responding to the US financial problems, showed the timeline it could work when faced with a significant legal problem. Members of Congress might be prosecuted for not similarly quickly moving on the Geneva violations.

Likely OVP Failure To Retain Evidence of Geneva Violations

The court noted the OVP view of their legal obligations was narrow, raising the prospect some documents have not been retained, as required:

Court: However, Defendants admit that they have interpreted the PRA in a narrow fashion and have only preserved documentary material in accordance with that narrow interpretation. As such, if Defendants’ interpretation is not correct as a matter of law, there is no question that documents that may be entitled to PRA protection will not receive the statute’s protections.During the negotiations, before the final court order, the OVP and plaintiff CREW attemted to arrive at an agreement. However, Of the court found OVP, in responding to the CREW proposals, parsed language to define their legal obligations and compliance:
Court: [T]he defendants’ declarations offer carefully parsed language establishing only that defendants are preserving two subsets of vice presidential records

These two subsets are:

Declaration: all the constitutional, statutory, or other official or ceremonial duties of the Vice President fall within either

(a) the category of functions of the Vice President specially assigned to the Vice President by the President in the discharge of executive duties and responsibilities, or

(b) the category of the functions of the Vice President as President of the Senate.

Implicitly, the President would not have expressly "delegated" to the OVP the task of covering up war crimes, illegal FISA violations, POW abuse. The Libby Grand Jury testimony re Plame shows that the agreements were wink-wink, and not (necessarily) expressly assigned.

The problem is the OVP has been linked, in the DoD emails, with activities that fall outside these two subsets. There is no adequate information to know which other OVP activities, other than illegal domestic propoganda and FISA violations during wartime, also fall outside these two subsets. The OVP has essentially claimed that anything that is outside these two subsets is not subject to any legal requirement, oversight, review, or document retention requirement. This is a circular arguing to claim that evidence of illegal activity -- extending outside the law, and unrelated to the two subsets -- cannot be subject to any legal retention requirement. They're saying the National Archives cannot have access to evidence of unlawful OVP activity, which -- by their definition -- would fall outside the two subsets.

FISA Foils ACLU Yet Again

Secret Spying Court Stays Secret, Rejects ACLU Plea Again
By Ryan Singel / August 29, 2008

For the the third time in a year, a secret spying court rejected an ACLU request to let some sunshine pierce its dark curtains of secrecy, ruling late Thursday that national security prohibits publishing even unclassified versions of court documents or allowing non-government lawyers to argue in the court.

The Foreign Intelligence Surveillance Court was reacting to an ACLU petition in July to be part of the court's review of new wiretapping powers handed to the Administration by Congress in July. Under the new law ---known as the FISC Amendments Act -- the nation's spies can order companies like AT&T and Google to help the government drop dragnets into domestic internet and phone facilities to capture all communications suspected to involve at least one foreigner.

Previously, the law said that such wiretaps had to be approved on an individual basis if done inside the U.S., while more lax rules held sway if the govenrment wiretapped such communications outside the U.S. That legality did not stop the Bush Administration, which began a secret spying program after 9/11 that included targeting these kinds of communications.

The ACLU argued that the new law expanded the government's powers so broadly that the court needed to make exceptions to its ultra-secret hearings that never allow any opposition.

Foreign Intelligence Surveillance Court judge Marya McLaughin dismissed those pleas, saying (.pdf) that there was no right for the public to know about the workings of the court.

The FISC has no tradition of openness, either with respect to its proceedings, its orders or to Government briefings filed with the FISC. [...]

Although it is possible to identify some benefits which might flow from public access to Government briefs and FISC orders ... any such benefits would be outweighed by the risks to national security created by the potential exposure of the Government's targeting and minimization procedures.

ACLU attorney Jameel Jaffer expressed frustration, yet again -- saying that secrecy should not be wrapped around a new law that affects every American's privacy.

"The Bush administration says that the new law is necessary to protect the country against terrorism, but there’s nothing in the law that prevents the government from monitoring the communications of innocent Americans," Jaffer said in a written statement. "The intelligence court should not be deciding important constitutional issues in secret judicial opinions issued after secret hearings at which only the government is permitted to appear."

The ACLU also wanted to file a brief contesting the constitutionality of the targeting procedures and the law, but McLaughin declined, saying that the group's analysis would not be helpful since only the government and the court know how the spying works.

The FISC was given a little authority in the new law to oversee the procedures the National Security Agency will use to make sure it does not intentionally target Americans or snag purely domestic communications with its new dragnets. Under the rules, the NSA can't point the microphone at a particular American to monitor their overseas communications without a court order naming the target, but can monitor all Americans by targeting anyone outside the country using a new blanket order.

The ACLU also asked the court to make the government file unclassified versions of the documents it has to file with the court that describe the dragnets. Other than a yearly accounting of how many surveillance court orders it has granted or denied, little is known of the court and it has only released a handful of decisions in its 30-year history -- including three in the last 12 months denying the ACLU's petitions to open itself up.

The ACLU also filed suit in federal district court to contest the law, which also provides retroactive amnesty for telecoms that helped the government warrantlessly spy on Americans.

Source / Wired

How to Put Rove Behind Bars for Years: David Swanson

Last August, a group of Congressman Henry Waxman's constituents met with him and urged him to make use of inherent contempt. They were then obliged to explain to him what inherent contempt is. While the current (110th) Congress has probably seen more requests, subpoenas, and contempt citations ignored than all previous Congresses combined, Waxman has certainly endured more such insult than all other committee chairs combined in the current Congress. He's single-handedly destroyed whole forests with the flood of letters and requests and subpoenas he's sent down Pennsylvania Avenue, and yet he was apparently unaware of a procedure commonly used by Congress through most of this nation's history that would actually compel people to show up and answer questions and produce documents.

Over the past 12 months a vague sort of awareness of inherent contempt has crept into the minds of certain committee members and party leaders, almost entirely as a result of thousands of citizens demanding that they immediately make use of it. Quasi-grass-roots groups afraid to demand impeachment have taken up the cry for inherent contempt, but pro-impeachment groups have not all paid sufficient attention to it, their eyes set on a bigger and better prize. And, of course, in a sane world we would see impeachment happening. The latest overwhelming piece of evidence of the most egregious impeachable offense conceivable comes from Ron Suskind's book released this week reporting that Iraq's intelligence chief had informed the United States prior to the 2003 invasion of Iraq that Iraq possessed no weapons of mass destruction. George Tenet and the White House have admitted the truth of this, but absurdly dismissed it as unimportant.

However, here's an additional vital piece of information: our so-called representatives only intend to pretend to work for two more weeks this year, and those two weeks are scheduled for September. If anything could move them to impeachment (and more days at the office), perhaps a fight over inherent contempt could. Therefore, I propose we all demand one. (And if you bear with me, I'll tell you exactly what inherent contempt is.)

Congresswoman Zoe Lofgren recently wrote the following dismissive letter to her constituents who were demanding inherent contempt:

"Thank you for contacting me about Karl Rove's failure to appear before the Judiciary Committee. I appreciate that you took the time to share your thoughts with me. The Judiciary Committee is taking Karl Rove's failure to testify very seriously, and we are currently considering all options - including contempt proceedings -- to compel him to answer important questions regarding the firing of several U.S. attorneys. Some have suggested that Congress implement 'inherent contempt' as if that is a viable option. The jail cell in the basement of the Capitol doesn't exist and the Sergeant at Arms is an over 60 year old executive. Congress is not a police force, and we will likely need to continue to utilize the courts and system of justice to pursue these matters. Again, thanks for being in touch. Please do not hesitate to let me know if I may ever be of assistance to you or your family."

Congresswoman Lofgren is very badly informed or chooses to pretend to be. The age of the Sergeant at Arms is not a decisive factor in the question of whether the Congress will engage in what for most of its history was understood as "inherent self-protection". There is a Sergeant at Arms for the House and one for the Senate, there are deputies, and there is an entire Capitol police force. In one of the earliest uses of "inherent contempt" a prisoner of the United States Congress argued that a warrant used to arrest him was invalid because it had been addressed to the Sergeant at Arms and had been enforced by the Deputy Sergeant at Arms. The U.S. Supreme Court ruled that the warrant was still valid; and that practice was subsequently followed for many decades. The Sergeant at Arms is not on his own, but is permitted and required to employ subordinates as needed. In 1877 a Deputy Sergeant at Arms was instructed to accompany a Congressional prisoner to New Orleans to procure telegrams he had hitherto refused to produce when subpoenaed, and to accompany another prisoner to New York to be seen by his physicians. In addition, a Sergeant at Arms incapable of performing his duties can be reassigned. With labor unions banned on Capitol Hill, there shouldn't be any legal difficulties in immediately rearranging a few employees of the government.

When inherent contempt began to be discussed in 2007, having not been heard of in some 75 years, the Politico (never a publication overly careful with facts) reported that the jail had been razed in 1929. Congresswoman Lofgren, on the other hand, maintains that "the jail cell in the basement of the Capitol" doesn't exist. She seems to take no position on whether such a thing ever did exist. Both of these replies wildly miss the mark. The House or the Senate or, in fact, any committee thereof, has the power, according to tradition and to rulings of the U.S. Supreme Court, to instruct the Sergeant at Arms of the House or Senate to imprison anyone being charged with contempt of Congress or being thereby punished for contempt of Congress. The difficulty of finding a place to imprison them has been easily solved in a variety of ways and could be again quite quickly.

The reference to 1929 may be a reference to the building that stood on the current site of the Supreme Court building, construction of which began that year. The Old Capitol Prison was not the only thing housed in that building when it was there, was not among the initial uses for that building, and had long since ceased to be used by Congress when the building was razed. During the latter part of the 19th Century and the early part of the 20th, the common jail of the District of Columbia was routinely used by the Sergeants at Arms of the House and Senate. While the jail did not belong to Congress, an arrangement was made to use it, housing the occasional "contumacious witness" in the same building with the general DC prison population. The District Jail is described in this 1897 New York Times article. This 1934 article from Time Magazine discusses the Senate's use of the District Jail to punish contempt in both 1860 and 1934.

In 1872 a Congressional committee discussed the problem of the DC jail not being controlled by Congress, but apparently concluded that the Sergeant at Arms could keep control of a prisoner in that jail. In other instances, including that same case, a prisoner of Congress was summoned to appear by a court, and Congress instructed the Sergeant at Arms to transport the prisoner to the court to explain the situation but not to release the prisoner from his control.

Congress has not always made use of outside jails. In 1868 this measure was approved: "Resolved, That Rooms A and B, opposite the room of the solicitor of the Court of Claims, in the Capitol, be, and are hereby, assigned as guardroom and office of the Capitol police and are for that purpose placed under charge of the Sergeant-at-arms of the House with power to fit the same up for purpose specified.... Resolved, That said Wooley, for his repeated contempt of the authority of the House, be kept until otherwise ordered by the House in close confinement in the guardroom of the Capitol police by the Sergeant-at-Arms until said Wooley shall fully answer the questions above recited, and all questions put to him by said committee in relation to the subject of the investigations with which the committee is charged, and that meanwhile no person shall communicate with said Wooley, in writing or verbally, except upon the order of the Speaker."

The U.S. Capitol and the House and Senate office buildings are full of rooms that could easily be transformed into guard rooms, and are in fact almost certainly full of guard rooms already. The room where we held the Downing Street Minutes hearing in June of 2005 would work fine with very few modifications. And -- I'm sure this will surprise you -- DC is chock full of jails, several of them quite close to the Capitol. In fact, the Capitol Police make extensive and frequent use of them under an ongoing understanding with the custodians of the jails. The Capitol Police also hold people, at least temporarily, in a building very near the Senate office buildings.

Reviewing the early history of Congressional contempt reveals a mixture of offenses, including refusing to answer questions (on various topics), refusing to produce documents, failing to appear, etc., but also libeling Congress, assaulting a Congress member, beating a congress member with a cane, even Congress members themselves beating up a senator, and the case of a drunken citizen applauding inappropriately. While use of police force has disappeared as a response to recalcitrant witnesses, it is still routinely used for people who applaud inappropriately. When about 50 of us held a sit-in in Chairman John Conyers' office last summer to urge impeachment, he had us taken to a nearby jail by the Capitol Police. The age of the Sergeant at Arms didn't seem to get in the way. When Cindy Sheehan was arrested for wearing an unacceptable T-shirt to a "State of the Union" speech, the Capitol Police sent us and the media on a wild goose chase to several different jails that they use before arriving at the one from which they actually released her.

But if use of the police has vanished since 1934 as a tool for enforcement of Congressional contempt, then what did Congresswoman Lofgren mean by suggesting that her committee was contemplating "contempt proceedings"? Well, she meant that -- in fulfillment of the popular "definition" of insanity -- Congress would consider doing with Karl Rove what it has long been doing with Harriet Miers and Josh Bolten, that is: waiting for the executive branch of our government to go through some sort of magical conversion and begin prosecuting its own most loyal criminals.

In the early years of this country inherent contempt was not distinguished as "inherent". It was simply called contempt. But it was enforced exclusively by Congress, just as contempt of a court was enforced by a court, just as contempt of a state legislature or an earlier colonial legislature or the British Parliament was enforced by the very same body. While the Constitution did not mention contempt, it was the consensus of Congress, later supported by multiple U.S. Supreme Court rulings, that Congress had the inherent right to this form of "self-protection". This was understood most often as protection from disruptions and assaults, but also as protection from insult and from the erosion of Congressional power through the refusal to comply with requests or subpoenas. (Interestingly, the record shows that a citation of contempt by Congress, or rather a warrant to arrest someone charged with contempt in order to put him [or her, Miers may be the first her] on trial, does not have to be preceded by a subpoena. That answers another question asked aloud by Rep. Waxman in a recent hearing.)

Common Cause recently advocated inherent contempt with this statement: "Under the inherent contempt power, the House Sergeant-at-Arms has the authority to take Karl Rove into custody and bring him to the House where his contempt case can be tried, presumably, by a standing or select committee. If he is found by the House to be in Contempt of Congress, he can be imprisoned for an amount of time determined by the House (not to exceed the term of the 110th Congress which ends the beginning of January 2009) or until he agrees to testify. The Supreme Court has recognized the power of the House to enforce its own subpoenas through the inherent contempt provision, stating that without it, Congress 'would be exposed to every indignity and interruption that rudeness, caprice or even conspiracy may mediate against it.' Before Congress asked the Justice Department to try contempt cases on its behalf, the inherent contempt power was used more than 85 times between 1795 and 1934, mostly to compel testimony and documents."

Even the Washington Post agrees: "Both chambers also have an 'inherent contempt' power, allowing either body to hold its own trials and even jail those found in defiance of Congress. Although widely used during the 19th century, the power has not been invoked since 1934 and Democratic lawmakers have not displayed an appetite for reviving the practice."

Before moving on, and before I forget, I should point out that there is a reason my title claims we can put Rove away for years, while the proposal from Common Cause would only lock him up until next January. While the House must release all prisoners at the end of each two-year Congress (and has traditionally done so), the Senate need not and can hold them into the next Congress. And, remember that while the House Judiciary Committee just recently voted to hold Rove in contempt, the Senate Judiciary Committee voted to do that last December. It simply hasn't yet done it, choosing to defer to the full Senate, which chooses to shut its eyes, cover its ears, and hum.

But deferring to the full House or Senate is part of the tradition of statutory contempt, not inherent contempt. It has been solidly established that inherent contempt resides in a full house or a committee. So, what is statutory contempt? Well, in 1857 Congress passed a law criminalizing contempt of Congress (and the maximum jail time is 12 months). It did so in large part precisely because of the need to free prisoners at the end of each Congress, but also because of the time-consuming nature of putting people on trial for contempt, something that was commonly done by committee, with the accused often permitted legal counsel and witnesses. Given what Congress spends its precious time on these days, who wouldn't wish for it to have back its inherent contempt power? Well, our wish is granted. Congress never lost that power, and in fact continued to exercise it up through 1934since when it has simply chosen not to. Inherent contempt is a power that resides in what the U.S. Constitution created to be the most powerful branch of the government. It cannot be overruled in court, and it cannot be vetoed or pardoned. It can also not be endlessly delayed by court appeals, which is where the House's contempt citations for Miers and Bolten now are. Delaying that court decision until the next Congress, which seems likely, makes the possibility of enforcement unlikely. And if a decision were reached, it would fall to Congress to use inherent contempt to enforce it anyway.

On April 15, 2008, the Congressional Research Service (CRS) laid out its understanding of contempt powers in an updated report: http://www.fas.org/sgp/crs/misc/RL34097.pdf

This report describes the first use of Congressional contempt in 1795. Bizarrely, to the modern eye, the matter arose when a number of Congress Members protested that someone had attempted to bribe them. While today's members of Congress will hardly deign to speak with anyone who has not properly bribed them through our "campaign financing" system, at that time this action was considered an insult to the dignity of Congress. Yes, Congress was believed to possess dignity. (Another early case involved a newspaper falsely reporting that the Senate had passed a bill. Nowadays it's acceptable for the president to falsely sign a bill that wasn't passed. False reporting these days is almost considered a patriotic duty.)

The CRS report disagrees with the Bush administration's assertions of "executive privilege" but cannot change the fact that they are likely to be raised again as often as needed. And the report suggests that the Fifth Amendment right to avoid self-incrimination applies in certain contexts. However, past tradition makes that claim debatable, and the statute reads:

"U.S. CODE

TITLE 2--THE CONGRESS

CHAPTER 6--CONGRESSIONAL AND COMMITTEE PROCEDURE; INVESTIGATIONS

Sec. 193. Privilege of witnesses

No witness is privileged to refuse to testify to any fact, or to produce any paper, respecting which he shall be examined by either House of Congress, or by any joint committee established by a joint or concurrent resolution of the two Houses of Congress, or by any committee of either House, upon the ground that his testimony to such fact or his production of such paper may tend to disgrace him or otherwise render him infamous."

The power of Congress that I am proposing it use or lose is not the sort of power the White House has claimed to randomly kidnap, detain, disappear, torture, and murder. Everything Congress does in this regard must be open and public. It must not randomly, even if publicly, arrest someone for an offense unrelated to contempt of Congress - or for no offense at all. It must allow communication with legal counsel and family. It must treat everyone humanely. It must not abuse its power, and such abuses must be checked by the judicial branch. The purpose of Congress detaining prisoners is to compel them to produce information believed to be of potentially vital importance to the governance of our nation.

The CRS report provides very little background on this, but a great deal can easily be had. Simply look up Hinds Precedents, especially chapters 53 and 51, and Cannon's Precedents, especially chapters 184-185. You'll find numerous detailed cases of Congress asserting its power, arresting people, holding them until they agreed to answer questions, and then releasing them. Some of these people did not refuse to appear, but simply failed to satisfactorily answer questions. One has to wonder how a previous Congress might have responded to Alberto Gonzales's endless recitations of "I do not recall."

In 1857, a New York Times reporter refused to say which members of Congress had asked him to get them bribes (protecting his "sources" just as various Judith Millers today protect the people who feed them proven lies that costs thousands of lives), so Congress locked him up until he answered and then banned him from Congress. Imagine trying that with ABC News executives until they revealed who fed them the anthrax-is-from-Iraq lies.

In 1924 an oil executive appeared but refused to answer certain questions, so the Senate held -- literally held -- him in contempt. Senator Thomas Walsh of Montana argued that this question of contempt was of the gravest importance, and that it involved "the very life of the effective existence of the House of Representatives of the United States and of the Senate of the United States." The matter was taken to court, and the witness fined and imprisoned. Imagine locking up the attendees of Cheney's secret energy task force meetings until they explained how our supposedly democratic government arrived at some of its worst recent decisions.

Various cases of contempt in the past have involved perceived insults to Congress and have been resolved by a simple apology. This may strike people today as humorous and vain. I find less fault in it than I do in today's Congress, which appears completely incapable of feeling either shame or self-respect. If impeachment is off the table, inherent contempt is in the past, contempt citations are delayed until moot, subpoenas are laughed at, FISA requests are tossed in the trash, and other appeals to the executive branch to please allow itself to be overseen are simply ignored, then I must agree with Senator Walsh that we are witnessing the very death of the House and Senate. The capacity to hold someone in contempt, on its own, in September, would be a sign of life in what otherwise appears a motionless corpse.

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http://www.davidswanson.org

DAVID SWANSON is a co-founder of After Downing Street, a writer and activist, and the Washington Director of Democrats.com. He is a board member of Progressive Democrats of America, and serves on the Executive Council of the Washington-Baltimore Newspaper Guild, TNG-CWA. He has worked as a newspaper reporter and as a communications director, with jobs including Press Secretary for Dennis Kucinich's 2004 presidential campaign, Media Coordinator for the International Labor Communications Association, and three years as Communications Coordinator for ACORN, the Association of Community Organizations for Reform Now. Swanson obtained a Master's degree in philosophy from the University of Virginia in 1997.

Your Bank Helped President Violate FISA

Most of the attention on the President's illegal FISA violations has been on the telecoms. There's apparently no discussion on how the President provided the telecoms with the information they used to assist the President. One answer are the illegal Presidential orders to financial institutions to turn over without a warrant your personal contact information including your non-public emails and phone numbers. FISA expressly addresses these financial institution issues during wartime:

"A person who, in good faith, produces tangible things under an order
pursuant to this section shall not be liable to any other person for
such
production."

The intelligence committees whitewashed the WMD investigations. There's been no adequate public discussion of what records the intelligence committee has or has not reviewed related to the financial institution's collusion with the President on FISA violations:

"the Attorney General shall fully inform the
Permanent Select Committee on Intelligence of the House of
Representatives and the Select Committee on Intelligence of the Senate
concerning all requests for the production of tangible things"

Someone right now knows whether the AG and/or Members of Congress have or haven't done their job. We need to publicly examine and discuss these aspects of the declassified versions of these AG reports to Congress. The right answer is not to grant immunity to sweep the following issues under the rug:

A. Either the AG complied with this requirement, or he did not;

B. Either the Congress received this information, or it did not; and

C. Either the AG and Congress did or did not meet their legal obligations under the Constitution.

We're still not clear what the Congress and President hoped to shield with this grant of immunity. The grant of telecom community implicitly means there was no adequate or lawful order for either the telecoms or the financial institutions. It defies reason to believe the President and Congress granted immunity only to the telecoms because the financial institutions had "fully complied" with FISA. NSLs have been abused, but we haven't had accountability within the financial services:

A full account and public discussion over the financial institutions conduct when they knew or should have known about the illegal FISA activity.

A. When did the banking institutions discuss their concerns with legal counsel;

B. How do these discussion timelines in the banking sector compare to DOJ OLC discussions with telecoms; and

C. Did the banking board of directors raise issues which, on the telecom side, the Qwest CEO raised?

Investigations are needed outside Congress. The public should broaden it's view of the FISA violations from what the telecoms did or didn't do; and ask who helped the banks, President, and telecoms to:

A. Transfer this information;

B. Bypass the warrant requirements; and

C. Agree to share your personal information outside your financial institution with the President and telecoms, in violation of your privacy rights and agreements with your financial institution.

Your State Attorney Generals may have reviewed the narrow question of telecom collusion with the President. Vermont, Deleware, and New Jersey are only some that are taking the telecoms to court. The State AGs in Federal court are alleging your right to privacy was violated.

The Department of Justice failed to convince Judge Vaughn Walker to dismiss the cases. The litigation against the telecoms continues, and the EFF plans to challenge the recent bill granting immunity to the telecoms. Arguably, the grant of immunity to the telecoms is illegal: The President and Congress unlawfully exercised judicial power in affecting the outcome of pending cases.

The broader questions include:

A. How the President acquired this information;
B. Which financial institutions and other entities had access to your phone numbers and emails, and provided these illegally to the President, telecoms, or others;

C. How did the President convince financial institutions you trust to breach their agreements with you;

D. Which overseas entities and intermediaries did the President use to bypass the FISA requirements, and unlawfully coordinate the transfer of information from your financial institution, through intermediaries, to the President and telecoms to support the NSA's illegal activity;

E. How was a DoD military analyst-like propaganda program developed with Presidential approval and review to distract attention from these legal compliance issues; and

F. How did the President and Congress use the illegal NSA monitoring to craft media messages designed to ensure toleration for this illegal activity?

There should have been warrants to access, use, and transfer this information, especially this many years after 9-11. Telecom immunity means Congress has not adequately conducted oversight. Without this information, there is inadequate public attention to review the compliance programs.

The FISA violations and AG comments indicate the US government still is not securing warrants. This suggests despite the United States President well passing the 15-day window authorizing warrantless surveillance, something else is convincing the financial institutions and others to provide your personal information to the President without a warrant.

FISA Violation Conspiracy Between President, Members of Congress, Financial Institutions, Telecoms

One argument is "the FISA statute does not expressly prohibit" the transfer of information from the banks to the President; nor does it relate to the transfer of information which does not relate to electronic surveillance.

This misses the point. Once the President openly admits he's violating FISA, the question turns on who knew or should have known their assistance to the President was and remains material in his FISA violations. Arguably, the banking system has well known, or should know, the illegal FISA violations were only possible if the banks provided this information to the President and telecoms.

When you open an account at a financial institution, you and the bank agree to terms and conditions. Those are not unilateral conditions the bank only imposes on you. Rather, when you open your account you should reasonably expect the bank internal controls to only disclose your personal information when there are lawful requirements. Arguably, when the President's agents appears at your bank demanding information, your banks should do what the telecoms refused to do: Demand warrants.

It appears the President is not, in all cases, securing the required warrants to access your banking information; and not adequately justifying to the court why, on his assertion alone, he needs your email and private contact information. The President said he wasn't trolling your emails. He didn't rule out the possibility that he was trolling non-public databases to get email accounts and other private information.

The integrity of the financial reporting system appears to have been compromised. The issue isn't merely which bank boards have colluded with the President, but which bank auditors and examiners have ignored this illegal cooperation; and have not ensured there are strict controls on how the information in your accounts is transferred.

The public needs to have a discussion about the lessons we've learned from the telecom support of FISA violations. Granting immunity to the telecoms is one way the Congress and President can squash any broader examination. Note the similarity in the questions to issues raised with the telecoms and DOJ OLC memos on POW abuse in violation of Geneva:

A. Members of Congress refused to investigate war crimes.

How long have the Members of Congress on the banking committees known about the illegal transfer of your private contact information to the President, but did not investigate this material support required to support FISA violations?

B. The Qwest CEO was investigated.

How many bank board of directors were threatened or fired because they refused to cooperate with this illegal data transfer from your financial institution to the President and telecoms?

C. Congress granted the telecoms immunity, despite having no judicial power to affect ongoing litigation.

As with the telecoms, which bank directors have lobbied the President to thwarte FISA enforcement, get immunity, or other retroactive protections?

D. The President legalized unlawful activity against POWs.

As with the POW abuse memos, where are the copies of the DOJ OLC memos which retroactively "legalized" this unlawful transfer of information, without a warrant, from your bank to the President and telecoms?

E. Congress Has Been Intimidated Not to Investigate the President For Impeachable Offenses

What are the details of the plans to dissuade the public from conducting investigations against bank officials for their unlawful cooperation with the President, and failure to secure warrants before data was transferred to the telecoms?

The banks are only part of the problem. Other data warehouses include the internet websites, the email accounts, and other data-mining operations which gather emails. The questions include:

A. How the President acquired these emails and telephone numbers;

B. Did the President bypass the FISA warrant requirements to secure some non-telecom records;

C. What are the names of the intermediaries and overseas entities helping the President violate FISA;

D. Who in Congress knows about this, but has done nothing.

One issue to consider is the "backlog" of NSA intercepts. Once the President and others use this massive vacuum cleaner to troll through email accounts and phone numbers, the President and others need to explain what they're doing with this information, how it is safeguarded, and how the private contact information is adequately safeguarded so that it is not exploited, misused.

For example, once the President and law enforcement illegally acquire your email or telephone number -- and know that that information relates to you -- without a warrant, they could troll through anything waiting for you to "possibly" be involved with something questionable.

Arguably, the President and others are doing things which even the State AGs don't know about. This may be behind how Governor Spitzer was caught. When he was AG he knew or should have known about the emails and NSA; but it appears the President and others are doing things and accessing private information without a warrant using methods the leading prosecutors may not want to openly discuss, much less admit.

The Framers intended for warrants to regulate how the executive conducted searches. The idea was to have a magistrate review the facts and ensure the search is reasonable, not arbitrary, as the Red Coats were doing. This President appears to have too much information, not enough justification, and an inadequate legal compliance program.

It appears Members of Congress have secretly endorsed these methods, including the roving teams conducting warrantless interrogations. Using information the President and others acquired from your bank, the IRS, and other sources, the President has questions about transactions. He's not arguing that you're engaged in criminal activity; he's only asserting -- because his databases are incomplete -- that he needs to interrogate you, without a lawyer, because your job is to explain the gaps in his database.

FISA expressly prohibits the President and others from -- as it appears he is doing -- punishing people for engaging in Constitutionally protected activity, and targeting them for surveillance:

FISA: "(B)
not be conducted of a United States person solely
upon the basis of activities protected by the first amendment to the
Constitution of the United States."

Consider the still secret DOJ OLC opinions. The President's legal counsel likely uses unconvincing criteria to argue something is "not substantially" linked with protected rights.

That's not a reasonable search. It's the President using his incompetence and ignorance as the pre-text to put the attention on you.

Illegal presumption of guilt: The President, using your financial data, is starting with the incorrect presumption: "All inexplicable gaps are possible evidence; and that you, as the target, must explain away his ignorance."

The correct approach is for the President and others to develop a case using evidence, and for the government to prove the case.

We must examine the broader scope of these FISA violations; and ask who else must have helped the President violate FISA. The answer isn't to grant immunity for FISA violations; but to broaden the legal restrictions against the illegal support of FISA violations. FISA needs to be strengthened, not explained away as trivial.

What You Can Do

1. Contact your state AGs and ask them whether they have or have not discussed the broader illegal support for the President's unlawful FISA violations. Ask them whether they plan to work with the other State AGs reviewing telecom violations of State privacy statutes, and broaden the investigation from telecoms to including other illegal support for these privacy violations.

2. Raise this issue with your financial institution board of directors. Ask them whether they've been threatened if they discuss the ongoing illegal transfer of information outside the warrant requirements.

3. Contact Members of Congress on the House and Senate banking Committees. Ask for the Congressional correspondence logs showing who members of Congress on the banking committee were talking to to grant immunity to the bank board of directors for their assistance to the President and telecoms.

4. Ask through FOIAs to see the DOJ OLC opinions related to the banking institutions cooperation with the President on these FISA violations;

5. Secure copies of the concerns banks' legal counsel raised with DOJ staff counsel on the liability financial institutions would have when this illegal support was disclosed?

Federal Judge Ruling: George W. Bush is a Felon

Federal Judge Ruling: George W. Bush is a Felon

Written by Len Hart

Friday, 11 July 2008 20:00

Chief Judge Vaughn Walker of the US District Court in California has ruled that President George W. Bush is a felon. The ruling stems from the case of Al-Harmain Islamic Foundation Inc. v Bush, a case which will now be remembered as making it official that Bush's program of 'warrantless spying' is illegal. Judge Walker held that the president lacks the authority to disregard the Foreign Intelligence Surveillance Act, or FISA -- which means Bush's warrantless electronic surveillance program was illegal. Whether Bush will ultimately be held accountable for violating federal law with the program remains unclear. Bush administration lawyers have fought vigorously -- at times using brazen, logic-defying tactics -- to prevent that from happening. The court battle will continue to play out as Congress continues to battle over recasting FISA and possibly granting immunity to telecom companies involved in the illegal surveillance. --Suing George W. Bush: A bizarre and troubling tale The complete story at Sott.net outlines the sorry history of how the Bush administration has defined the law of this nation as well as the laws of common sense and decency to carry out a program that would have made even Richard Nixon or J. Edgar Hoover blush. It would seem to me that it's now well established that Bush is indictable in a Federal Court. It is also my understanding that any sitting federal judge can now --upon his/her own motion --convene a federal grand jury to investigate Bush's many violations of federal law, not the least of which are US Codes, Title 18, Section 2441, which make Bush subject to the penalty of death for each death of his war of aggression in Iraq. (a) Offense.- Whoever, whether inside or outside the United States, commits a war crime, in any of the circumstances described in subsection (b), shall be fined under this title or imprisoned for life or any term of years, or both, and if death results to the victim, shall also be subject to the penalty of death. --TITLE 18 > PART I > CHAPTER 118 > § 2441 § 2441. War crimes It's easy to find evidences of Bush's tyranny. Here's a headline linked from the article cited above. Editor's note: This article is part of a Salon investigative series on spying inside the United States by the Bush administration. Research support for the article was provided by the Nation Institute Investigative Fund. Spying on Americans without warrants, charges based on secret evidence, a small town divided by fear. Welcome to the world of Bush's "specially designated global terrorists." May 19, 2008 | RIYADH, Saudi Arabia, and ASHLAND, Ore. One day in March 2004, Soliman Hamd Al-Buthe, a former member of Saudi Arabia's national basketball team and a government official in the city of Riyadh, picked up his phone for an urgent call with two American lawyers in Washington, DC Most of the call concerned a growing confrontation between the US government and the Al-Haramain Islamic Foundation in Ashland, Ore., the US branch of a global Saudi Arabian charity organization under investigation for possible links to terrorism. Al-Buthe had been an advisor to Al-Haramain from 1995 to 2002 and was a member of the Oregon foundation's board of directors. Just weeks prior to the call, the foundation -- a respected fixture in the Ashland community run for years by an Iranian-American Muslim named Pete Seda -- had been raided by US law enforcement agents. --Blacklisted by the Bush government, Tim Shorrock, Salon It is the Bush administration which has pressed this issue, an issue that has come up, until Bush, just four times in 23 years. But since 911 and the Bush wars for which it is fraudulently cited in justification, Bush has seized upon a Supreme Court ruling of 1953 to justify sweeping authority far beyond anything that could have been envisioned by the courts. Mere mention of two words --'state secrets' --was always enough to get a wink and nod from a federal judge. Things have changed. There is the possibility that George W. Bush is under investigation by a Federal Grand Jury as we write this. Federal grand juries do two things: They investigate to determine if federal crimes have been committed; and they indict, or bring criminal charges against, those whom the grand jury believes committed federal crimes. To indict, the grand jurors must have probable cause to believe the persons indicted did violate federal criminal law. Grand juries offer prosecutors several advantages in conducting a criminal investigation, especially a high-profile, factually complicated investigation. For one thing, grand juries operate in secret; this not only gives prosecutors the ability to shield the evidence they are gathering from disclosure to the press and others, it can also encourage people to cooperate with a grand jury. Unless a witness reveals that he or she testified before a federal grand jury, no one ever needs to know that occurred, and since the transcripts of grand jury testimony are secret, no one will know what the witness said. This can be an advantage in an investigation, such as an investigation into terrorism, where witnesses may be afraid of retaliation if they cooperate with investigators. Grand juries also give prosecutors the power to subpoena witnesses and evidence from around the country and, in some circumstances, from other countries, as well. (Getting evidence from abroad is discussed below.) If federal agents want to interview someone, the person can refuse to speak to them; this is true even if the person is arrested as a material witness, because persons who are arrested can invoke the Miranda rights to silence and to an attorney. The U.S. Supreme Court has held, however, that the Miranda rights are not available to witnesses subpoenaed to testify before a grand jury. Unlike someone being interrogated by federal agents, a grand jury witness not only has not right to silence or counsel, he or she is required to answer questions posed by the prosecutor working with the grand jury and by the grand jurors. A grand jury witness can refuse to answer if he or she can invoke the Fifth Amendment as to a question, but the privilege must be claimed as to each question and the prosecutor can challenge a witness' ability to invoke the privilege. --Using a Grand Jury to Investigate the September 11, 2001 Terrorist Attacks, Susan Brenner & Lori Shaw It is against both the letter of the law, logic, and common sense to allow Bush carte blanche to dismiss out-of-hand legal challenges to his various assumptions of dictatorial powers. This is crucial! Bush wars on Iraq, Afghanistan and 'terror' can be shown to be criminal and fraudulent. No other criminal defendant could simply invoke 'executive privilege' in order to have the smoking gun evidence against him thrown out of court. And Bush must no be allowed to do so either! In this case, the evidence that must be allowed, the evidence that must be weighed by a federal grand jury will prove beyond any shadow of doubt that the panoply of frauds and lies Bush perpetrated upon the sovereign people of the US amount to high treason, mass murder, and war crimes for which US Codes themselves demand the death penalty. Source: The Existentialist Cowboy

ACTIVISM: Anti Star wars defense update

JUNE 22 PHOTOS AND AN EMAIL FROM THE COLONEL

Folks met in Brunswick, Maine on the town green for an hour of sign
holding, writing letters to Condi Rice (who goes to the Czech
Republic on July 10 to sign the Star Wars radar agreement), and we
closed with a circle and everyone shared why they had come. Most
of those in the photo fasted on June 22.

In dozens of cities all over the world the June 22 global day of
fasting brought people out onto the streets in creative displays
of solidarity with the 70% of the people in the Czech Republic who
are working hard to reject U.S. plans to deploy a Star Wars radar
facility in their country.

Thousands of signatures were gathered for the petition at
http://www.nonviolence.cz/ In many places statements were written
on paper plates to Secretary of State Rice and will be sent to her
before her visit to Prague in early July.

You can find many more photos, and reports, at this web site.

At the end of the day I received an email from Col. Robert Suminsby,
Jr. in which he said, "The point I made, and will continue to make,
is that the country is on an unsustainable course. The growth of
entitlement spending, left unchecked, will eventually crowd out all
other parts of the federal budget."

Col. Suminsby worries that people like me are taking a fixed position
of hands off entitlement spending ........"You see, I'm prepared
to make sacrifices to fix national problems. I think others should
expect to make sacrifices as well," he said.

I want to assure the Colonel that I too am ready to see "sacrifices"
made for the good of the nation. I'd like to see the $14 billion
of month we are wasting in Iraq and Afghanistan brought home to
build rail systems, solar, and windmills. I'd like to not see us
attack Iran. I'd like to see an end to tax cuts for the rich and
the corporations. I want an end to the NSA's "warrantless wiretapping"
of American citizens and people all over the world.

I'd like to see at least a 50% cut in military spending for starters.
(Just yesterday an article was sent around about the increases in
funding for the Pentagon's high-tech black "secret" budget. I'd
like to see the black budget shut down.) I'd like to see the 750
plus U.S. military bases around the world shut down.

Living at a time where we face increasing corporate media consolidation
many of us have to rely on email, websites, and blogs to get our
messages out to the general public. Newspapers are now in dire
financial straits, in part, because people rely on the Internet as
their primary source of information.

Col. Suminsby concluded his email to me by saying, "Therebs precious
little difference between you and any number of right-wing blowhards
on talk radiob&on either end of the ideological spectrum, if you
insist on creating your own version of someonebs position and then
attacking it, youbll succeed only in making yourself feel good, and
convincing those who already agreed with you."

I would thank Col. Suminsby for sending me the email. He should
know that increasing majorities of the people in the U.S. and around
the world are now quite uncomfortable with the escalating U.S.
military empire. There is a growing backlash against U.S. militarism
both here at home and abroad.

I noticed that the Colonel is soon to be transferred to Germany. I
lived there in the mid-1960's when my Air Force father was stationed
in Wiesbaden. One day our middle school class was taken to the Rhine
River to view the ruins of a castle. The tourist guide informed us
that the stone slab we were standing on had once been the barracks
of Roman soldiers. I remember wondering to myself, "What were those
soldiers doing so far from home?" Even at that young age I intuitively
understood that empires are a contradiction and in time can not
stand. They are destined to fall.

In our case the U.S. empire is now collapsing. One clear sign is
that in the U.S. there is growing competition for the federal tax
dollar. Will we fund the Pentagon or social progress? We can't serve
two masters.

It appears that the debate will go on.

Bruce K. Gagnon Coordinator Global Network Against Weapons & Nuclear
Power in Space PO Box 652 Brunswick, ME 04011 (207) 443-9502
http://www.space4peace.org global...@mindspring.com
http://space4peace.blogspot.com (Blog)