Comments (34)

Jake D. wrote on October 31, 2007 10:57 AM:

I predict that Schumer and Whitehouse vote for Mukasey -- we just need to make sure Lindsay Graham doesn't defect -- there will be at least 64 total votes confirming Mukasey as well.

You guys have again taken what should have been a routine confirmation and turned it into a huge political victory for Bush.

Jane wrote on October 31, 2007 11:27 AM:

Mukasey's claim that there are undefined circumstances in which the President can ignore laws passed by Congress removes this from being a routine confirmation. This Constitution was not designed to establish an elected King.

As to torture, Mukasey is saying 'trust me. I'll check out what we are doing and if it is torture I'll take it up with the President who is doing it'

Given the past records of almost all of this administration's appointees -- trust me does not go very far except with the idiots who watch Faux Noose.

Jake D. wrote on October 31, 2007 11:32 AM:

Don't worry, Jane. If you guys somehow, miraculously, manage to stop Mukasey, the back-up choice is Ted Olsen!!!

Dan D wrote on October 31, 2007 11:54 AM:

Jake D.

If we stop Mukasey, Olsen would be laughed out of the room. Bush will be forced to appoint someone that will actually stop the torturing, prosecute breaches of the law and revoke all those nonsensical OLC opinions from the Yoo era.

Jake D. wrote on October 31, 2007 12:10 PM:

Then, it's Acting Attorneys General until at least January 2009 (you know that Mukasey was Guiliani's choice for A.G. too, right?).

poggy wrote on October 31, 2007 12:28 PM:

I'm waiting to read the news: Leahy caves in again and votes for Mukasey. F***ing wimpocrats.

So we'll have an AG that has formally said that the president can violate any statutes that he feels like. In other words, he's king. Just wonderful.

Troll Patrol wrote on October 31, 2007 1:18 PM:

Click "Troll Patrol" to add your comment to a cafe post, asking for the removal of a bothersome troll.

Brought to you as a public service.

Phoenix Rising wrote on October 31, 2007 1:19 PM:

Jake finally gets something right...

If the Democrats vote down Mukasey (and they will, I think), then Bush gets either an Acting AG until 2009, or a recess appointment to fill the gap; I'm guessing the Dems will at the least recess over the holiday break.

That's no good reason to vote *for* Mukasey; at this point, the only way the SJC should vote in favor of recommending him is if they have private assurances he'll be a mole for them once he's confirmed.

Mr. Sowbug wrote on October 31, 2007 2:24 PM:

In some sense, we're getting into the symbolic -- a vote to confirm Mukasey could be construed as tacit acceptance of his Ps-O-V, including Prez-above-law and waterboarding-depends-on-other-stuff. Even if Mukasey is denied and an interim AG is installed who has the same views as Bush/Mukasey, at least a line will have been drawn in the sand that there are some things that are intolerable to us. That would be the base of a moral "high ground" -- without that, there's nothing.

Anonymous wrote on October 31, 2007 2:30 PM:

Subject: Review of Previous AG Guidance to President

See Page 5/172: Witness: "I will not hesitate to so advise the President and will rescind or correct any legal opinion of the Department of Justice that supports use of the technique."

Follow-up: Will the nominee provide an open copy to the public and Congress of this recision; and provide a summary table showing the status of all reviews; and outline a schedule to orderly review all DoJ AG guidance issued 2001-2007?

Anonymous wrote on October 31, 2007 2:35 PM:

Subj: Reciprocity Against Americans Permitted

5 of 172: Mentions Reciprocity.

However, witness fails to discuss issue of non-charged civilians being offered under bounties, yet asserted to be part of AlQueda. A non-charged, non-involved civilian does not lose protections on accusation alone. Reciprocity, as the witness discusses on page 5 of 172 of his responses, permits something else: Other nations to impose like abuses on Americans. It cannot be argued that "different" legal standards apply: Geneva permits any abuses directed at POWs in GTMO to be directed against "protected" American combatants.

Followup: How does the Witness plan to handle the problem of non-combatants being falsely accused of being part of a terror cell? What will be done to ensure the abuses end, and all US military enjoy all protections of Geneva without any fear of reciprocal violations for abuses at GTMO?

Anonymous wrote on October 31, 2007 2:41 PM:

Concern: JAGS Not Adequately Consulted by US Government

Issue: Witness Provides Vague Definition of "Appropriate" Legal Counsel

See 6 of 172, answer 1E.

The witness does not directly state that he "will consult with JAG." He only says "appropriate". Yet, in the eyes of the President -- who appears to have made a legal decision without JAG input -- the "appropriate" legal counsel (in his mind) are those who disagree with the JAGs, and allegedly support war crimes, abuse, and Geneva violations.

Follow-up: Please provide a clear answer:

A. What will be done to ensure that the JAGs are not excluded from any OVP-WH-DoJ-DoD discussions on prisoner treatment, laws of war; and that the laws of war fully include the legal requirements expected under Geneva: Procedures must be followed; bounties may not be used; and civilians cannot be held indefinitely.

B. What protections will be in place to ensure that "minority views of the JAGs" are not ignored; but are given the needed attention to ensure there are no Geneva violations by US personnel, contractors, agents, and legal counsel in planning, policymaking, resource allocations, or oversight?

Anonymous wrote on October 31, 2007 2:51 PM:

Subj: Critical Word In Question Not Adequatenly Addressed

See question 2 response, page 6 of 17

Sample question: "What is your understanding of what standard the Department of Justice currently . . ."

Issue: "Standards" is not specifically included within the answer.

Note: The response does not include the word "standard" but "statute" and "definition". Witness does not expressly state, "This is the standard used in response to your question."

Part I

The witness has merely asserted what the law is; not what the standard that is USED.

Part I Followup: Request witness expressly state what standard is USED. Remind witness to not discuss the law as it is written, but the PRACTICES that exist. This means focusing on procedures, reviews, guidelines, internal reviews, and other management actions in place to ensure there is an adequate compliance program in place. It is one thing to have a standard; quite another to have an oversight system to ensure that standard is met.

Part II

Note also, when asking about the "standard in place" witness does not adequately discuss procedures for compliance; which DOJ officer oversees, how DOJ OPR ins involved; or whether FBI personnel are or are not tainted in gathering evidence related to allegations of violations; nor in how the procedures DoD/CIA/NSA/JTTF/DHS have will or will not be adequately investigated when FBI agents may be on the same JTTF teams as personnel assigned to conduct the interrogations.

Part II Follow-up:

A. What independent method will ensure there is an oversight policy, procedure, and review mechanism to ensure we do not have friends of the interrogators reviewing the compliance program?

B. Why has the existing DoJ IG, DoJ OPR and reviews within the US Atty Executive Office not adequately worked, or been coordinated with CIA, DoD, NSA, or other department General Counsel on issues of Geneva compliance?

Anonymous wrote on October 31, 2007 2:59 PM:

Subj: US Government Official/Nominee Has Commented On "State Secret" Opening Door To Inquiry

Question 3, page 6-7 of 172 in re Rendition

Issue: Supreme Court stated Rendition issues are a state secret, and civilians in Germany could not bring their issues related to rendition to any US court.

Followup:

A. Why is the witness proposing that he "will" do something on rendition, when there is no Supreme Court plan to review any legal matter?

B. Rendition is not, according to the Supreme Court, a legal issue which will get reviewed. Why should the public, in absence of Supreme Court interest on rendition, believe the DOJ will do anything?

C. How does the witness plan to comment on, do anything, or review publicly any issue with Congress the Supreme Court and President have asserted -- allegedly illegally -- are a "state secret" and "cannot be reviewed?

D. What is the witness' view on bringing charges against the Supreme Court Justice for their alleged failure to review Geneva-related violations in the rendition program; and the alleged refusal of the Supreme Court to enforce Geneva in re Rendition?

E. What explanation does the witness have -- under oath -- for commenting on an issue which is supposedly a "state secret"? Why did the witness open the bard door to inquiry; what information did the witness have related to this "State secret" that he is no commenting; how can the witness as possible AG argue that the rendition issues are a "state secret" yet he, under oath, testified about the very thing he would likely argue cannot be discussed?

Anonymous wrote on October 31, 2007 3:11 PM:

Subj: Limitations on Executive Privilege

Issue: President not lawfully, under ORCON, allowed to classify, hide, or suppress information related to illegal activity, incomptetence, or maladminstration.

Concern: Witness does not expressly include within the exceptions to executive privilege the factors within ORCON.

See Question 4 response, Page 8 of 172

Followup:

1. Is it the view of the witness that illegal activity -- related to rendition, FISA violations, prisoner abuse -- can or cannot be hidden with executive privilege?

2. What happens when witness are are aware of illegal activity: Does the witness plan to support any retaliation against witnesses like Sibel Edmonds or NSA officers who are aware of illegal activity?

3. What steps does the witness plan to take to ensure that those who have evidence of illegal activity are given their chance to have that evidence reviewed, and is not hidden or suppressed behind a claim of "privilege" or state secret?

4. Is it the view of the witness that a "state secret claim" can be illegal?

5. Would the witness support or oppose a legal action by the State Attorney Generals for purposes of prosecuting him as AG; or against the Supreme Court for refusing to review issues of war crimes, Geneva violations, or other evidence which has been allegedly improperly suppressed on a "state secret" claim?

6. Is it the view of the witness that only the Federal Government can challenge US government officials, contractors, and other agents on issues of war crimes?

7. Is it the view of the witness that the States have no role in enforcing Geneav against Members of Congress, the AG, President, DoJ Staff, or other agents of the US government, or contractors?

8. What is the witness' plan if he is aware of information that illegally capture information -- with consent of the telecoms -- was used to carry out war crimes, prisoner abuse, or other grave breaches of Geneva: Is that a state secret; or is it "executive privilege" to hide that evidence; or does the DoJ not plan to review these allegations of war crimes connected with the initial FISA violations allegedly by the telecoms?

9. What is the witness' view on the issue of conspiracy: If there is a crime, and it has been improperly hidden - from the outside as a "state secret" -- do all the people attached to the subsequent use of that information become liable for that first and subsequent illegal act; or is there something else that the witness plans to do to avoid holding all personnel-contractors allegedly complicit with a conspiracy from being reviewed?

Anonymous wrote on October 31, 2007 3:21 PM:

Subj: Illusory Judicial oversight of Congressional-Executive Dispute

Issue: Separation of powers, co-equal branches.

Page 8 of 172, question 5A

Comment: Question asks the witness about "referee"-ing an issue. This is a trap, which the Witness does not appear to have escaped. Notice the witness does not address the larger issue: What will the Congress do, when the President refuses to assent to this referee?

Point: The Judicial branch never referees anything. The Founders didn't put the Judicial Branch in a position to act as a superior branch over the Congress and Executive. If there is a problem between the Congress and President it is the job of the Court merely to enforce the law, not to act as a referee. "Referees" are politicians who use diplomacy; judges are not referees, they are judges.

Options: Witness failed to remind the Congress that there are options: Cutting funds, changing delegations of power, revoking programs, introducing a special master, canceling the certification for the DoJ, or Congress implementing other statutory options to assert power: Failing to pass budgets, as is permitted; failing to conduct reviews of budgets, and simply ending funding; changing the accreditation standards and revoking funding for DoJ-affiliated institutions which rely on Congressional support for funding. Oh, and that "scary" word: Impeachment investigations to gather facts.

Anonymous wrote on October 31, 2007 3:27 PM:

Subject: Accommodation vs. Assent

Question 5, Page 9 of 172

Issue: Witness suggests that President and Congress can "accommodate" each other.

This is incorrect. Congress is not required to "accommodate" war crimes; nor find a "happy medium" on what is acceptable level of abuse or illegal activity. Congress has the duty to shut down funding for that appropriations; and ensure the President is held to account. It is arrogant for the witness to suggest that "accommodation" is the desired standard. No, checks and balances is the means by which power is constrained. The law does not permit "accommodation" of illegal activity; it demands assent.

It would be preferable if the witness said bluntly, "Congress is not doing its job in ensuring illegal activity is ending." And, "Even when the evidence is not known, the Congress can -- without Presidential coordination -- end funding for things the President will not provide information. It may make adverse inferences and deny the President of the needed life: Budget authority."

Anonymous wrote on October 31, 2007 4:08 PM:

Subject: No specifics in Plans

Page 9 of 172, Question 6

Issue: Vague Answers Imply Vague Plans

Comment: The witness has merely asserted the mission of the civil rights division. He asks that his 'example' be the "means" and the "plan" by which he leads. That is not a plan, that is a principle.

What would have been more preferable -- given this is a written response -- would be for the witness to define with specifics, what he plans to do: What reviews will he do; what lines of inquiry will he have; what programs will he develop; what timelines will he create; what action teams will he outline; what specific goals and objectives -- above and beyond what exist -- to change course. This witness -- despite the chance to think about, develop, and write a written response, does not provide this.

Follow-up:

1. Specifics To Articulate A Specific Civil Rights Plan

Based on the feedback the witness had from the DOJ IG, President, and Congress, what specific corrections does the witness see need to be made?

2. Details To Advance Civil Rights Agenda

What is the specific plan, checklist, and standard of conduct he will use to evaluate progress along these goals and milestones?

3. Scope of Preparation for Civil Rights Leadership: Time Is Now

Putting aside the issue the witness, despite the chance to think and write has no written plan, could the witness describe what he did review with the President, members of Congress, or anyone else by way of "what the problems were" and "what needs to happen"? Does the witness have any inclination of what the problems are in DoJ other than "We need a better example"?

4. Judicial Experience To AG Office: Civil Rights Leadership Requires Bold Leadership

Based on the vague [paraphrasing] "I'll lead by example"-goal/program/idea", could the witness outline something novel that he as a judge could bring to the table to solve this reckless conduct by DOJ Staff counsel in re assent to illegalities?

5. Mitigation Planning To Ensure Civil Rights Modernization Continues

Based on what the witness knows, seen, and has heard: What does he see needs to occur to specifically ensure legal compliance, that GOP hacks are kept out of the US Attys office, and standards of conduct are enforced/raised to ensure no repeat?

6. Leadership Competence

If the man cannot -- after "this much time" -- in writing provide a hint of a plan, what is going to happen when there is a time pressure?

7. Alleged Inappropriate Contractor Involvement With Prosecution Discussions: How Can Civil Rights Be Protected When Contractors Are Walking Around DoJ defending their right to be above FISA accountability?

What will this witness do to ensure telecom-contacting-counsel are kept out of the AG's planning meetings, and there is no issue of the fox watching the hen house?

8. DoJ Coordination On Legal/Judicial Standards of Conduct To Inspire: Civil rights require the right civility within the legal profession, not blind deference to The Decider.

What does the witness plan to do by way of better coordination with legal professionals in ABA; or the "enforcers" of the Judicial Standards of Conduct to ensure the law is asserted, not explained away as a triviality during WH Staff Meetings and court filings/court opinions?

9. Sample Special Interst Area For Witness "Plan"

Topic: Judicial Cannons, Example, and Justice Roberts: How are civil rights undermined when the Supreme Court will not hear evidence related to civil rights violations?

A. What's the plan of the witness to find out what is going on with the Justice Roberts ethics investigation?

B. Any plan to review the issues of war crimes, GTMO abuse in light of the Supreme Court rulings on Geneva applicability?

C. Who is going to go over to Justice Roberts and say, "You really ought to think about resigning because it looks as though you're not being independent."

D. What is the role of a retired judge in providing counsel on the Judicial Standards of Conduct to someone on the Supreme Court?

E. Should a retired judge, when they are aware of evidence showing a Justice may have a conflict but did not recuse themselves, raise that issue for prosecution?

F. What happens when a retired judge-turned-AG learns that the Supreme Court has refused to hear issues of war crimes, Geneva violations, or rendition: Should the judge recuse himself and direct prosecutors to review Geneva and determine whether the Supreme Court has failed to fully enforce Geneva?

G. What is the plan to ensure the Supreme Court fully defends all US Geneva obligations: Who will do the review; when will this review be done; who is in a position with the DoJ to provide this oversight; is there something stopping any prosecutor from reviewing the Supreme Courts apparent recklessness in not ensuring Geneva is fully enforced in re rendition, prisoner abuse, and other misconduct under the laws of war?

10. Civil Rights and the NSA Data Intercepts for DoJ, DHS

Here are some things that the witness might have spent some time thinking about, and providing a general answer: "We're going to look at this cess pool in DoJ and clean it up. Even if it means draining the swamp inside the oval office. We're going to leave no desk untruned, no carpet unfurled, and no one -- not even the President or his dog -- beyond the reach of The Glove of Justice."

A. What does the witness plan to do about the transmission of NSA-collected data to law enforcement for purposes of pretextual stops, warrantless interrogations, the DHS "random pickup program?

B. When there are gaps in DHS-DoJ-JTTF databases, and American civilians are engaged in permissible conduct -- approved transactions, business sales -- will the witness issue guidance to ensure that financial transactions beyond the small minded-JTTF-understanding are not the pretext to stop civilians, remove them from their cars, and interrogate them without a warrant?

C. Will there be a reconciliation process when JTTF and local law enforcement are caught fabricating reasons for stopping someone; what happens when all the records in the local law enforcement do not match what the officer say: Should the public be able to bring a cause of action under 42 USC 1983, and risk public backlash for daring to keep the law enforcement on a leash?

D. Does DoJ OPR plan to put on the DHS watch list formerly assigned US military personnel who are caught abusing civilians in the United States with warrantless searches, pretextual stops, testilying, and destruction of video evidence?

E. What will happen to previously assigned military personnel when they are caught ignoring the 4th Amendment, and relying on tips from NSA using 'investigative leads" -- what's the plan of the witness to ensure this abuse of power ends?

F. How many Americans have to be "abused in violation of their clearly protected rights" before DoJ OPR launches a program to better oversee police training at the local level? If this was such a 'good program' why do police have to rely on their military interrogation experience -- accuse, demean, insult, ridicule, threaten, violate rights -- to have a simple conversation with a cooperating NSA mob informant?

G. What happens when US government efforts to "catch the bad buys" relies on tactics that violate civil rights: Will the witness use the public's reasonable opposition to that illegal abuse as a pretext to expand abuse against civilians: Include the entire continental United States in the "Protected Presidential Security Zone" for the secret service? [We can't handle the feedback on war crimes, so keep those war crimes lawyers away from us."]

Anonymous wrote on October 31, 2007 4:16 PM:

Issue: Senator's reasonable concern remains unchallenged.

Concern: Poor trace between written responses and the key issues raised in the 3uestions.

Sample: Page 13 of 172

Senator Kennedy's Question about the DTA getting ignored. Witness and Kennedy are not on the same sheet of music.

Witness is not responding to the question; nor addressing Senator's concerns that the DTA would have no effect. Witness provides no basis to dismiss Senator's concerns. Asserting that they "have" complied; and ensuring there was compliance are two different things.

Note, witness does not respond when Senator Kennedy asks, "Will you be more forthcoming". Written responses are not reconciling with key points in questions.

Follow-up:

What is the plan of the witness to reconcile the Senator's concerns with the apparent lack of compliance, and meaningless assurances which have not addressed the Senator's concerns?

Anonymous wrote on October 31, 2007 4:22 PM:

Subj: Inadequate Legal Standard

Page 13 of 172, page 4 of 64

Response to Kennedy Question in re Professor Luban

Concern: Notwithstanding the Constitution, witness does not appear to have a firm understanding of Geneva Conventions Prohibiting Abuse.

Witness fails to adequately address Geneva Prohibitions Against Abuse, Focuses Narrowly on whether Constitution does or does not apply. This absurdly-implicitly would ask us to believe that abuse is not an issue for people who are not under the Constitution. This invites another trip to the US Supreme Court to "resolve" this "confusion".

Anonymous wrote on October 31, 2007 4:29 PM:

14 of 172, Kennedy Question 2, p. 4-5 of 64

Witness Response: "This inquiry requires review of executive practice . . ."

Concern: Witness fails to discuss Nuremberg, or "executive practices" which Nuremberg convicted.

Witness cannot rely narrowly on US practices, but international law, precedent, and legal standards. US practices are not precedent; the law is first. Witness appears to have difficultly distinguishing [a] law; [b] precedent; [c] Nuremberg; [d] US conduct; [e] Presidential obligations under laws of war; [f] duties of judicial offices and policy makers in Executive/Legislative branches to enforce the law; and [g] allegations/evidence policy makers have not effectively or timely enforced laws of war, Geneva, or Nuremberg precedent through oversight, budget cuts, investigations, or referrals to the US Atty for prosecution.

Anonymous wrote on October 31, 2007 5:17 PM:

Subj: Lawful Power vs. Legal Standard

14 of 172; Kennedy 5 of 64; Question 3

Witness Response: "The President must comply with a Constitutional law . . ."

Key phrase: "Constitutional law" as opposed to "law" or "Unconstitutional law".

Concern: Witness implicitly suggests that not all Acts of Congress are legal requirements. Witness uses the phrase "Constitutional law" as opposed to "law". Witness is silent on "Unconstitutional laws" which he may or may not view the President is bound.

Oath of office issues: Why does the witness have a hard time answering written questions: Is there some sort of mental reservation, 5 USC 3331?

Issue1: Must the President comply with all laws, even those he disagrees, does not like, or say are "Unconstitutional"?

Issue2: Where does the President get Article III judicial power to "determine" the law is "not Constitutional" and that he may not be constrained by that act of Congress, despite Presidential refusal to "not sign" the bill via veto?

Overview: The issue of the FISA violations, rendition, prisoner abuse, is the President "determined" the law was "not Constitutional" as a constraint on power. The witness appears to support the very ambiguity which this Congress has not been able/willing to challenge: Where some laws are more equal than other; or whether some laws can be ignored or not enforced depending on which contractors are getting access to which DoJ-WH office.

Follow-up:

1. Presidential Finding vs. Judicial Opinion

What happens if, in secret, the President "determines" a law is "not Constitutional" -- Can the President ignore that "unconstitutional" law?

2. Constitutionality: Presidential Finding He Cannot Be Held Accountable -- Is this lawful?

Is it "unconstitutional" for this President to be held accountable for war crimes, breaches of Geneva, FISA violations, and other violations of the US Constitution?

3. Oversight Of Secret Determinations Contrary to Law

Does the President, in secret, have the power to violate that law, that the President -- without any input from Congress or the Judiciary -- deems "unconstitutional"?

4. AG Enforcement Obligations Against President

If the President does not agree that something is "Constitutional" what will the AG do to work with Congress to ensure the law is remedied?

5. Cease and Decist vs. Prosecution

Is it the view of the witness that if the President "determines" that a law is "not Constitutional" he may assert power any way he chooses until Congress finds out he has made this determination?

6. Presidential Determination on Law vs Determination on Power

What does the witness view as "permissible" if the President -- on his own, without coordination with Congress -- "determines" that an Act/Law of Congress is "not Constitutional" -- is there no constraint on the President?

7. Acts of Congress May Constrain Power -- Is this subject to debate, defiance?

Can the witness distinguish between ministerial duties which can be constrained by law; and power?

8. Constitutional Law

How many powers does the Constitution in Article II delegate to the President?

Why does US Constitution in Article II use the singular "power" when describing power delegated to the President; but the plural in Article I when referring to "legislative powers" delegated to Congress? [Power vs. Powers]

Is it the view of the Witness that the Constitution, as written, is wrong; that there is a "plural powers" in Article II; and that "power" in Article I is subject to Presidential agreement?

Can the President rewrite the Constitution and say he has "powers" [plural] and that Congress has "no power/powers" to pass any laws which will guide the President?
 
9. Executive Orders vs. Congressional Acts

Can the President pass an executive order that violates a law the President -- on his own -- determines  is "illegal" or "unconstitutional"?

Can the President pass an executive order saying his activity is not reviewable by Congress, the Courts, or the public; and is that order lawful?

10. Legitimacy: Adherence To Written Laws

What is the definition of legitimacy? How can we call ourselves a "nation of laws" or legitimate when we have -- on his own -- a man who will not assent to the law?

Can the President -- on his own -- make a rule that "he can violate Acts of Congress he deems are not Constitutional" and provide funds, arms, and munitions to people the Congress has expressly stated shall not receive funding, support, or munitions?

11. Geneva And Contractors: DoJ Duty to Enforce Laws of War Against Unlawful Combatants On US Payroll, part of US programs, or working directly or indirectly for the President

Should the legal counsel and contractors associated with that activity -- outside what Congress permits, but expressly forbids -- be deemed lawful or unlawful combatants under Geneva?

If people under the President's direction engage in activity which Congress forbids, does this mean the agents, contractors, and other people are acting outside what is a lawful contract?

Where does the AG propose to enforce this contract if -- outside the Congressional act -- the President says the laws do not govern, apply, or regulate any agreement: How can a contact be lawful if the President "determines" the law does not apply?

12. Investigation: Alleged Illegal Funding For Presidential Programs In Violation of Constitution, Geneva, Acts of Congress

Does the witness have any plans to determine the location where US government contractors, agents, or personnel are printing money or transferring money from non-existent accounts to use on programs Congress is not aware, which violate the law, and are contrary to the acts of Congress?

If the President "determines" that an Act of Congress -- that prohibits funds being spent -- is not Constitutional, does this mean the President may, on his own, ignore the Article 1 Section 9 requirement that funds may only be used for "lawful" thing?

13. Moving Target On Law, Application

How can the President rely on a determination that an act of Congress "is not lawful"; but then reverse himself and say the use of funds is lawful: Where in the Constitution does the President get delegated any judicial power to determine that something is or is not lawful?

14. Allegation: Assertion of Non-Delegated Powers

Is there anything in Article III in re Judicial Power that the President may incorporate, use, and apply in "determining" that he is not bound by law; and that he may -- on his own "determination" -- choose whether he is or is not bound by law depending on the weather, direction of winds, and the smile on Condi or Laura's face?

15. President "Above" Coordination With GOP Legal Counsel?

Why wasn't the Patriot Act updated, when first drafted, with the option to grant immunity to the telecoms?

Did the President, DoJ, and WH "not trust" the GOP Senators and Members of Congress when drafting the Patriot Act?

Are there any provisions of the "Patriot" Act which the President has kept secret?

Did Congress vote, through secret incorporation, of things which are not lawful: Abuse of civilians, warrantless searches, denial of access to counsel, intrusion upon legal counsel communcations with clients, pretextual stops, fishing expeditions into people's homes?

What is the difference between the US government under this President and the Abuses of the British Monarchy just prior to 1776?

is there a reason free people should assent to this abuse?

What is stopping Americans from -- as was done in 1776 -- drafting a new set of documents which more effectively delegate, revoke, and divide power to ensure it is not abused?

Does the President view the Constitution as "quaint"?

How many other things has the President done that he has not shared with his own party?

Any plan of DOJ to rise above this partisan issue and fully explore the full range of illegal activity which the President appears to have self-delegated himself the "authority" to conduct, then destroy evidence of that illegal conduct in re RNC e-mail destruction?

Does the President plan to travel to France where indictments have been issued against Rumsfeld?

Does the witness understand there is no statute of limitations for war crimes, especially against judicial officers/judges in re their alleged recklessness in not fully enforcing FISA, the Constitution, or the Geneva Conventions?

What does the witness plan to do if DOJ OPR concludes the witness should be the subject of a war crimes investigation in re alleged decision to not fully enforce Geneva, FISA, or the laws of war?

Anonymous wrote on October 31, 2007 5:35 PM:

Subj: Promises are Not Sufficient In Re AG Leadership, Oversight

16 of 172: 7 of 64, Kennedy Question 5

Witness response: "ensure that no interrogation techniques are authorized"

Issue: AG Oversight of interrogation is not narrowly one of reviewing policies, but also ensuring practices fully meet treaty obligations.

Concern: Unclear whether leadership will fully meet minimal standards, policies, treaty obligations, or conduct requirements.

Note the difference (wiggle room) in the answer: [a] Authorization of a policy for interrogation is different than [b] reviews of that policy or [c] subsequent prosecutions for violations of (1) policy; or (2) treaty obligations.
 
In other words: [1] "Is the policy correct" is different than [2] "Is the policy getting followed" or [3] "Are the training procedures and day to day oversight ensuring fully compliance with that legal standard" or [4] "Is the activity meeting our treaty obligations".

Witness response [""ensure that no interrogation techniques are authorized" "] does not address whether there will be --investigations-- into non-authorized/illegal abuse; or how those practices will or will not be managed; nor does it ensure that conduct will fully meet the treaty requirements. They may or may not, but the witness fails to provide confidence that this will be his guiding objective. Witness appears narrowly focused on whether the policies will or will not define something. That is not adequate.

Note,"compliance with the procedure/policy/standards" cannot be the minimal standard when that policy-procedure-standard fails to fully meet the requirement of Geneva. Geneva forbids absurd; but having a policy-program-standard-oversight process that "only reviews grave branches of Geneva" doe not adequately address requirement to ensure there is no abuse.

Anonymous wrote on October 31, 2007 5:47 PM:

Issue: Lacking Minimal Evidence of Reviewing Military Law, Laws of War

P 17 of 172, Senator Kennedy Question 8 of 64

Concern: Witness, despite the chance to review written case law before submitting his written response, has not made any effort to read any of the major cases affecting his confirmation. Unacceptable.

Remedy: Looks like there's no body that can do the job: Time to break up the DOJ into some manageable parts.

Specifics: This is a stunning witness written response: "I am not, however, aware of the particular facts and circumstances surrounding those prosecutions",

- Has the witness ever read any of the case law in re Nuremburg or the Justice Trials in Germany?

- Why didn't the witness review the cases?

- Why no summaries by anyone of these case prior to responding in writing?

- What skills has the witness shown/not shown by making this written response, but not showing any evidence he will quickly review the case?

- How did the witness, as a judge, make a legal opinion on FISA related cases; but apparently never considered whether that illegally captured information was or was not used for subsequent illegal abuses in violation of Geneva?

- Is the witness, despite being a former Judge, "not able" to get access to case citations in preparation for this written response?

- What education, CLE, or other things does the witness have by way of reviewing the laws of war?

- What was on "the list" of legal qualifications the witness has warranting nomination?

- How can the witness say he "will" do something -- by way of contacting the JAGS -- but the witness is not in a position to know whether the DoJ-staff review of the JAG input on war crimes issues is or is not meaningful?

- This is the "best qualified" person for the AG Position?

Anonymous wrote on October 31, 2007 6:02 PM:

17 of 172; Sen. Kennedy p.8 of 64

Concern: Shall vs. Should

Witness comment: "Torture should be prohibited"

Concern: Saying something "should" be prohibited is different than say it "shall be prohibited". It's a noteworthy legal wiggle to say something "should" be done, vs. saying it shall be done. Witness cannot use legal language to avoid an issue; but then avoid questions about his words.

Example: "We should be nice" does not mean that we will be nice; or that we understand we could be punished for not being nice. Statement leaves too much open. Not acceptable.

Relevance to Oath of Office: As AG, the witness' 5 USC 3331 oath of office says "shall preserve, protect, and defend the Constitution"; it does not say "should, if it is convenient, try. . .".

On leadership, you either are, or you are not: "This is what leaders do. It's hard. But you have to be able to do this. It takes work. it's not something you sort of do. You either are a leader, or you are not in a position of leadership." The witness needs more legal training before being considered.

Follow-up:

1. Does the witness think he "should" follow his oath; or that he "shall" be bound by oath?

2. Does the witness believe he "shall" enforce the laws and provide leadership; or that he "should" try to enforce the law?

3. Does the witness believe that he "shall well and faithfully" do his job; or that he "should" try?

4. Does the witness believe he "should" enforce the Constitution; and "should" protect the Constitution from domestic enemies; or that he "shall" enforce, protect, and defend the Constitution?

5. How can someone who says only something "should" be done -- not "shall be done" -- credibly ask anyone to believe that he's going to "lead by example"?

6. The witness "shall be" an example; or "should be" an example?

Anonymous wrote on October 31, 2007 6:37 PM:

18 of 172, Kennedy Question 9 of 64

Witness response: "I agree that in interpreting and applying Common Article 3, we are interpreing legal princples that could apply to American citizens. . ."

Senator question: [paraphrasing] Could these abuses be inflicted "upon An American", without calling attention to their combatant status; or whether they are or are not a lawful combatant; or wehther they are a citizen, or whether they are in the military. [Senator Question: "We shouldn't subject anyone to interrogation prpactices that we'd consider unlawful if used against an American?"]

Concerns with Witness response: Note the answer has two different categories: "American soldiers" and "American citizen". The difference is important.

Concern1: "Could apply"; no, they shall apply when the nation is at war.

Concern2: "American citizens" saying, "Could apply to American citizens" is incorrect: They shall apply. However, the subjtle point is these Geneva obligations are not broadly intended to be relevant to US citizens, but to American COMBATANTS.

As a side note, Geneva does provide protectiosn to Civilans. But the question of the Senator relates to whether or not the Conventions -- and American decisions to vioalte the Conventions -- could result in retalation and reciprocity. The answer is yes. This is permitted udner Geneva.

The witness isn't clear on this, suggesting he's not famiilar with how violations of the Conventions can be imposed against Combatants. Here's the key point: American non-combatants -- civilians -- can never lawfully be the subject of any reprisal. But the witnes isn't mentioning this: He's dividing his response into two other categories: Soldiers and civilians. What if those "civilans" are non-combatants, but have been falsely accused by the President, JTTF, or uS government?

Howeer, the way the witness has responded, it suggests he doesn't undesatnd this; or, at worst, he's leaving open the option that Geneva protections "may or may not" apply to Americans, regardless their combatant status or their role in the US government.

Comment: Witness does not appear to use consistent language by design. Raises the prospect, if he's coordianted this with DOJ, that DOJ knows American civilians -- non-combatants -- have been abused in violation of Geneva; and that they have rendered Americans to other nations. This answer doesn't close this option, but raises the possibility he knows about this, but it is part of a "secret program" he's sworn an oath to remain silent about. Unclear from his answer. Warrants followup.

1. Why in your answer are you differentiating between "soldier" and "citizen"?

2. What protections are not afforded to citizens once they are accused of a crime? [Right answer: None]

3. Is there something a civilian might do to bring about their loss of Geneva protections [Yes, If they are offered bounties, and engage in activiteis which capture other civilians, as was done in Afghanistan and Pakistan.]

4. Is there someting that an American citizen -- by asserting his Geneva protection-rights -- could face as retribution for doing so? [No, Geneva prohibits retalation against detained civilians for attempting to assert their rights. In the US, this is not followed: US prisoners are abused when they attempt to assert their rights. Prison guars and law enforcement will make up stories for other prisoners and incite prionser attacks on other prisoners as paypback for prisoner complaints about illegal conduct in the prison.]

5. Why is the witness saying the convnetions "could" apply to civilians. Please desdrivbe the sitations when the conventions "would not" apply?

6. The witness previously stated he did not have time to review the prosecutions of Nuremburg, yet in this answer he implies that he undestands the difference between soldiers and civilians in re Geneav. How did the witness "come to understand" this subtle difference, yet he claims not to have much time to review the specifics of the other litigation before Nuremberg?

7. Where is the term "lawful prisoner of war" defined? This does not exist. PRisoners of war are POWs. There is no "lawful or unlawful POW". There is only an "unlawful combatant"; but that does not deprive a combatant of protecdtions until he has been charged and adjduciated with that violation. The witness should explain why he is using the term "unlawful Prisoner of war" when Geneva makes no distinction; and define when, if at any time, a prisoner can be dperived of Geneva protections. [Right answer: Deprivation of rights for POWs can only be done in a manner consistent wtih the same procedures afforded to similarly situated US military personnel: Through trial, not accusation.]

8. "Interpreting legal pricipels that could apply to American civilans" is a troubling phrase. The witness need to clarifity:

A. Are there principles that "might not" apply to civilans; [No: Geneva was, in part, designed to constrtain warfare, and limit the ill-affects of combat on civilans. Sugesting that civilians "might not be protected" is analogous to unilaterally revoking Geneav. Once US civilians are abused in violation of Geneav, however, this does not mean other nations' civilians can be attacked. It is illegal to retalatiate against civilians for war crimes committed against civilians.]

B. Are there cases where Genva protections are not applicable; [No, civilians are always protected unless they engage in conduct which would strip them of protections: Complicit with war crimes planning; or being a contractor that supports/schedules/implements war crimes. See the French Railway litigation in re Holocaust; Zyklon B Contractor]

C. Which proceures and principles in Genaev are civilans not afforded? [Answer: Civilians are entiteld to all protections so long as they do not become a combatant; and do not engaeg in war crimes. Civilians in leaderhsip positions may be charged with war crimes for failign to end illegal policies implementing war crimes.]

9. Is the witness aware of any evidence showing American citizens have been detained, abuse, treated in violation of Geneva?

10. Is it a "state secrfet" whether American citizens have disappeared, been detained without charges, or have been abused by the US government, other powers cooperating with the President, or other contactors in violation of Geneva?

Key principle: When a nation goes to war, part of the pre-invasion planning is to ensure that all combat operations -- including POW detention and housing -- fully complies with Geneva. Part of the preparation means ensuring the l3egal community -- including prosecutors, Judge Advocates, lawyers, and judges -- fully understand the laws of war. This witness' statements suggest the legal community is not up to speed this many years after freely choosing to inavde another country. There was no imminent threat, so why is the legal community not screaming, "The best we have for the President to nominate are clueless on this"?

This witness appears to well illustrate the problem of "rusing to war" The legal community wasn't ready, not just in DoJ, but the courts. This judge oversaw (supposedly_ cases involving national security), but he appears to have no clue about Geneva. Again, this raises the question: What is the status of Justice ROberts ethics investigation?] Mobilizng for war means getting the country -- not just the contactors -- ready to fully support that. A review and leadership witin the US government would require fact fiding whether JAGs, courts, and judicial officers are up to speed on the law. It's absurd for the US -- this alter after invading Iraq -- to whine that the Iraqi governmetn "can't get it right" or that the "iraqi courts are abysmal" when the US -- despite the legacy of Nuremburg -- appears to have show, BY EXAMPLE no better respect for Geneva. To show an example, one must know what one is doing. This witness appears to have no clue about these issues. His terminology and phrasing suggests he has a steep learning curve before he'll be able to lead DoJ. We don't have time for that. We need leadership, not students.

Anonymous wrote on October 31, 2007 6:46 PM:

page 22 of 172

Witness comment: "should be able to employ interrogation techniques not specifially authorized"

Concern: No, Congress did not authorize with the DTA for CIA to violate Geneva.

Witness is misconstruing intent of Congress. In public. In writing. Before being confirmed. Before taking the oath.

Anonymous wrote on October 31, 2007 7:05 PM:

Subj: We the People Source of All Power, Oversight

Concern: Witness Appears Unfamiliar With Simple Soverignty Issue: We the People Oversee This Government, we are not their pawns. We the People are the sovereign.

page 24 of 172, Kennedy 15 of 64

Witness comment: "Benefit of the doubt" in re public respect for US government.

Concern: US Constitution is not based on "benefit of the doubt" but raw assertion of power within the law. Factions are intended to clash. The danger is when one faction -- in Congress -- refues to clash with the faction that defies the Constitution. Our system of governance -- checks and balances -- is not based on benefit of the doubt, but law. Law is there to constrain power.

The public, as evidenced by the Bill or Rights, has a reasonable basis to lack confidence in Government: The law appears to be a guideline for this Government to ignore, then hide the evidence of that illegality.

That govenment does not desrve benefit or trust, but vigilance. When that government ignores its oath, defies law, and cannot be trusted with power, that government deserves to be thrown to the wate heap of history, have its power revoked, and the citizens OVER THAT GOVERNMENT revoke powers and redelgate them.

This arrogant witness has done nothing -- on his testimony alone -- to inspire any confidence in the President's 'ability' to find qualified people; or for that matter members of the Judiciary. We can only go on the record. yet, look above -- this witness appears to, despite the 'time" to provide written answers, to not have taken the time to review the case law in re Nuremburg. This government has provided no reason to anyone -- other than mlindless claptrap -- to justify confidence or any deference or 'benefit of the doubt."

American citizens are not given any benefit of the doubt; doubt is used as the excuse to vioalte rights, intrude, and abuse civilians. If the US government dares to show the American public the "beneift of the doubt" perhaps the public might have a discussion about returning the favor. Maybe.

Follow-up.

1. Abuse of Civilians: Without A Doubt, But Immunized

Why should the public "give the US government, or any government the benefit of the doubt" when those agents do lie, mislead, and engage in pre-textual stops?

2. Warrants required: Without A Doubt, But Ignored

How can a goernment be "given the benefit of the doubt" when the purpose of the Judiciary is to suppress evidence that the goernment -- without a doublt -- has illegally obtained?

3. Abusive, warrantless interrogations: Without A Doubt, But Denied

If government is to be given the benefit "of th edoublt" why do citizens need to remain silent before responding to questions; why are legal counsel required to be present to ensure citizens are not abused during interrogations?

4. Evidence Destruction: Without A Doubt, But "State Secret"

If government is to be given the "benefit of the doubt", why did the RNC -- without a doubt -- refuse to retain all e-mails?

5. Betrayal of Oath: Without A Doubt, But Not Enforced

If the government is to be given the "benefit of the doubt", what is a citizenry to do when that government defies reason, lies, violates the law, fabricates evidence, attacks analystis, and suppress evidence contrary to the illegal objectives of that government?

Anonymous wrote on October 31, 2007 7:17 PM:

25 of 172: In re Qurin

Allegation: Perjury Charge against Witness

Subj: Witness appears to be lying, and is allegedly providing -- in writing -- statements that do not appear to reconcile.

Issue: Inconsistent statements by a witness before Congress are actionable.

Note witness "does respond" and "does have a comment" on this case. Why not providing comments on other cases that are seminal? Canned response of "not familiar" not consitent with his experience and what would be expected of a judicial officer of his education and standing.

Witness appears to be lying when he claims he's "not familiar" with a case; or that he "cannot comment" or "not familiar" with the details.

Note, here he is saying, "I believe"-- why not do that in the other cases? It appears he doesn't want to answer the question for a reason; but "that reason" appears to be linked with something he's though about. That defies reason: Why is he thinking about "not answering" a question; but wants us to blieve the issue he won't answer isn't something he thought about? He would have had to think about which answers he wanted to provide; then conclud which ones he wanted to comment on. He appears to have done somet thinking to know the cases he will say, "I believe" something as opposed to another response.

"No time to review the case" but "Plenty of time to decide which answers to say, 'I believe'" That does not add up. This is Gonzalez II. Enough!

Recommended follow-up:

1. Review the cases this witness has issued an opinion. Do any of the cases involve any war crimes, Geneav, or Nuremburg-related issues?

2. How does the witness reconcile two different responses?

3. Is there a reason the witness is saying, "I blieve" on something he is not sure about; but on other cases he will not comment?

4. Why should we believe he's "not familiar" with the cases?

5. What legal writings, speeches, or public comments has the witness made on things he would have us believe -- under oath -- he isn't familiar with?

6. Has the witness committed perjury?

7. Has the witness provided irreconcilable statements which are not consistent and tend to undermine confidence in his veracity before the public?

8. Is there any way to reconcile these apparently inconstent statements in re the case law on laws of war?

Anonymous wrote on October 31, 2007 7:31 PM:

25 of 172, Sen. Kennedy Question, 16 of 64

Subj: Alleged Evidence Witness Has Standard Shows No Track Record Of meeting in re Standards of Conduct, resignation criteria

Witness response: "If I did not believe that an Adminstration policy concern the treatment of enemy combatants was lawful, I would insist that the policy change, and faling that, would resign."

Concern: It's bold to say, "I will resign if X, Y, Z happens." The problem is the witness, as a judge, appears to have well faced these conditions, but isn't resigning, but endorsing through waffling responses the very thing he would have us believe he'll oppose. This defies reason. This witness, as a judge, had the power to direct investigations, and demand evidence to determine this. He apparently refused. Why should we believe he'll do so as AG?

There is no evidence this witness will accept he knows the policy is illegal; or that he has, when he had the chance, asserted power -- as a judge -- to ensure that illegal poliscy was changed: Through his lawful order to strike down that law. As AG he will have less power, not more as he once had a Judge, to change/challenge/adjust policies. Based on the record, and his alleged inconsistent statements, it does not appear as though he adequately handled the legal issues; nor does it appear he took action -- per his oath, as required -- to strike down illegal Presidential actions or results. He appears to be a rubber stamp, like this Congress.

Follow-up

1. Which legal opinions on these national security subjects [prisoner, FISA, Geneva, rendition, state secrets, privilge] has this witness issued opinions that would raise questions about why he did not strike down various Prseidential actions as illegal?

2. Given his involvement in the natioanl security cases, is there any evidence he did strike down as unconstitutioanl any laws, actions, or policies of the US government?

Anonymous wrote on November 1, 2007 5:12 PM:

Subj: Vague Management Plans [Repeat]

Ref: 25 of 172, Sen. Kennedy 16 0f 64

Concern: We're not hearing specifics

Purpose: This shows what the witness, with some marginal effort, might have provided to Congress.

Concern: Inadequate Information For Public And Congress to Monitor AG

Not withstanding the apparent problems this witness shows with vague plans, Congress does not appear, with the current leadership in House/Senate Judiciary to be sufficiently robust to work with DoJ staff or a new AG to provide the guidance a new AG may require. Congress needs to develop a plan to consolidate its concerns with this AG; and independently develop an oversight plan for this witness-AG. Let's be clear with what Congress will really need to do when working with this witness-possible next AG. Then the public can evaluate whether Congress is or isn't effectively overseeing the new AG.

Concern: Vaugness

Witness, in response to questions of "how" he would enforce a Supreme Court decision merely asserts he will. That is not a plan. That is merely a restatement of a requirement. Plans are something else. They are details, outlines, objectives, goals. Disturbingly, the witness -- despite the luxury of written response, and the implicit time to review, at his leisure the response -- does not appear to understand what a plan is.

Let's presume, for the sake of argument, that the concerns with the witness are ignored; and he is confirmed. Regardless the next AG, that AG will have to develop some plans. This possible-AG appears wanting. A careful analysis of his responses shows he has a steep learning curve; is not well versed in developing management plans; and will have a hard time adjusting course within DoJ. He appears to rely heavily on staff input and guidance, not his own thinking to chart a new course.

Recall the problem with DoJ: It's been poorly led. To change that course, new leadership must chart a new course, not rely on the same staff to repackage old water. This witness does not appear to have the skills needed to set benchmarks for his closest advisers, much less the larger -- still the same -- DoJ Staff to adjust.

Follow-up

1. Given the vagueness of his responses on "his plans," what information will the nominee bring to the table that will credibly send a signal: Things are changing?

2. What does the new AG plan to adjust course: Specifics?

3. What new lines of questions, what internal reviews, what goals, and management practices will he examine?

4. What will his goal be to review the US Atty videos to evaluate whether they are or are not a problem?

5. What will the method be to evaluate whether DOJ OPR is or is not entrusted with sufficient independence to challenge the DoJ AG?

6. What review cycle does the AG plan to use to review what went wrong with the President "self review" which DoJ IG was blocked; and DOJ OPR was not allowed to review. Specifically: What will be done to ensure the President's abuse of FISA (and other violations of the law) does not occur again?

7. What workflows within DoJ does the AG plan to independently review and analyze to evaluate what broke down 2001-2007; and evaluate how this breakdown will be mitigated going forward?

8. What DoJ contracts does the new AG plan to review to evaluate the training and management consulting provided by contractors: To assess what previous management practices/advisory plans were or were not linked with contractors that need more effective DOJ Staff management; which training programs are not achieving the required results; what types of GAO reports will the AG use to evaluate the contracting leadership within DOJ on these issues?

The above are merely discussion points. The key point -- not to be lost -- is we have no information from the witness on what he plans to do. Recall, he's not the AG yet; but when he becomes AG, he's going to have less time. Despite his luxury of writing written responses, the first cut at his plan shows he's not starting on the right foot. Again, if we presume he is confirmed, something needs to be done to ensure outside input gets injected into his staff meetings to ensure the problems 2001-2007 under the Previous 2 AGs does not recur.

What happens if the AG learns the real problem isn't just in the DOJ, but in how OVP-OMB-WH-GOP staff counsel do or do not coordinate with DoJ on issues the AG should independently review?

The Congress has the option of playing cat and mouse with him during letter writing/hearings; they could guide him to various management plans which might assist him. But the moment he becomes AG, the siren song becomes, "Well, we can't meddle." Baloney. The job of Congress -- even before an AG is confirmed -- is to work to challenge the Executive Branch to raise performance standards, adequately respond to the law, and resolve issues.

CONGRESSIONAL OBLIGATIONS

Suppose this witness is confirmed, yet we look backwards at the reviews the senators are making: Is there a problem within Congress that needs to be addressed: What will, despite Senate Reservations, ensure these concerns raised do get adequate attention on an ongoing basis? Congress needs to more effectively energize the DOJ IG and AG so that they effectively work with Congress on management concerns. With respect to the vagueness of this witness' responses, Congress needs to show it is going to do something different -- other than claiming "impeachment is off the table" -- to more effectively oversee, on a day to day basis, the DOJ Management issues.

Merely changing the face isn't a solution: The entrenched practices require a plan and direction to chart a new course. This witness hasn't provided assurances that he has specifics. Where's he going to get them? He could start with reviewing the GAO reports on DoJ; then outline an oversight plan with the DOJ OPR to ensure the practices in place are adequately reviewed. New faces, fresh ideas, and new perspectives are needed, but they will only mean something if the leadership -- this new AG -- is open to charting that course. This witness-possible AG doesn't appear to have that. Yet. Congress needs to recognize this issue and have a frank discussion with the witness-new AG: Let's get down to business, solve this problem, and clean up DOJ.

SAMPLE AG TOP-LEVEL MANAGEMENT REVIEW PLAN

Put aside the above. Forget everything you've read in this comment. Think solely about the public's objectives in reviewing the AG: What information, through the Media, Congress, and AG's office,does the public need on an ongoing basis so the AG will have the assurance that the public is comfortable with the pace and direction of the DoJ changes? Here is a sample list of issues which the public will likely require; and the Congress, DoJ, and AG need to work effectively with DOJ IG and GAO to effectively manage.

Each of these areas is merely illustrative, but requires a Congressional-matching-oversight plan to effectively monitor, evaluate, and detect progress along these plans and programs. The public doesn't care how this is done; but what the public does want is a sense that there is a joint Congressional-Executive team in place to resolve this mess in DoJ. to include:

1. Details
2. Milestones/Decision Points
3. Ongoing reviews
4. Training
5. Monitoring, options, and backup plans
6. Open discussion of progress, adjustments

Here are some sample things which Congress and the AG -- as a discussion point -- may wish to jointly develop a combined management action plan to effectively oversee the DOJ; and then report to the public: "This is what the plan is; this is how we're doing." The public needs assurances: The US government is responsive to the law; there is a system in place that will respond; and there are real solutions that are being implemented.

A. DoJ OPR

No notice audits of local law enforcement is needed. AG needs to randomly sample local law enforcement not to replace state level audits, but to evaluate to what extent the public does or does not have confidence in the 42 USC 1983 process; or whether the public is reluctant to report alleged officer misconduct to the FBI, DOJ OPR, or State officials.

The AG needs to understand what got in the way of DOJ OPR finding NSA-related violations; and what steps are required to ensure the President and others are not permitted to develop -- in secret -- plans and programs which violate the FISA, Supreme Law, Constitution, or Treaty Obligations.

AG needs to work with DoJ OPR and DOJ IG to ensure that they remain independent; that they are valuable eyes and ears for the IG and Congress; and that they effectively outline risk areas for Congress and the AG to resolve. Issues with Congressional notifications to DOJ OPR or DOJ IG need to be better resolved: What got in the way of DOJ OPR/DOJ IG from responding to Congressional concerns with FISA violations, prisoner abuse, and other alleged illegal activity; or did Members of Congress not put in writing to DOJ OPR or DOJ IG their legal concerns?

The public needs assurances that the DOJ OPR and DOJ IG are on their side to do the bidding of the public; not rubber stamps of political interests.

- What is the AG plan to ensure DOJ OPR, DOJ IG, and Congress can freely discuss issues the public is concerned about?

- On on issues of DOJ OPR investigations, what is the AG plan to provide a summary table of misconduct; and mediation plans for remaining staff to ensure this misconduct is quickly detected in the early stages?

- What are the lessons learned from DOJ OPR which ASACs and SACs need to incorporate in ongoing no-notice audits to ensure field offices have adequate personnel trained to address complaints as evidence of misconduct occurs/surfaces? [Ex: Where is the public advocate -- with real reporting/administrative power, not just a name -- within DoJ AG office on Constitutional issues; and how does this Staff Assistant get access to field office, detention centers and other facilities to evaluate whether procedures, reports, and personnel conduct meets intent of Constitution?]

- What steps does Congress and AG plan to visibly incorporate reasonable private citizen comments/feedback on DOJ performance into ongoing, public discussions on AG plans, programs, and oversight? [Ex: Where's a blogger conference or road show (between the AG and public bloggers, private citizens, and personnel familiar with DoJ inner workings) on selected topics on a monthly basis? Reform and oversight should not depend on paid lobbyists/media, but direct public feedback to the AG on Constitutional issues. Don't necessarily need immediate answers; but within a couple of days some sort of conclusion of, "We seeing a pattern here; this is our plan. How does this sound?"]

B. Civil Rights

The AG needs to ensure the gains of the Constitutional Amendments are secure. This may include government oversight, requests to Congress for better legislation, or a new program. This AG program must include a detailed analysis of the Supreme Court rulings to include addressing the Courts reluctance to uphold various previous cases. Regardless the Supreme Court's opinion, the AG needs to outline his plan to ensure the intent of the Framers as expressed through the Bill of Rights and other Amendments is fully realized.

The public needs assurances that the civil rights "gains" -- as enshrined in the Constitution -- are part of an active program to enforce, defend, protect; not something the US government finds an excuse to chip away:

- What advocacy programs does the AG plan to deploy to ensure the public understands their rights, can effectively advocate for themselves before counsel, and that the public understands the evidence required to support a civil rights claim [recognizing when to fire counsel; understanding counsel obligations to the Constitution and client; guiding citizens to effectively manage a case; recognizing problems that the legal system is not yet poised to resolve]?

- What methods will the AG use to effectively mobilize the public to understand what they can do to be the eyes and ears of the Constitution: To effectively check power, monitor government conduct, and provide valuable information to ensure all US, state, and local government effectively put the Constitution first, as required by oath?

- What is the AG plan to lead the public -- the AG's real boss -- in understanding how the law works, how legal principles are developed, and what private citizens on their own can do/read/review to evaluate how the legal community, DoJ, and Congressional oversight is or is not working along these standards of conduct and principles?

If you want support from the American people, give them the tools they need to assist you in supporting the principles you're supposedly there to protect: Reasoned discourse, problem solving, and a better civil community. When you ignore the public's reasonable concern you're sending the wrong signal: "We don't care about feedback, just accept our decision." The problem is when Congress, the President, and DoJ AG are wrong on principle and the law. The public will figure it out and no longer support you. They will oppose you lawfully when you attempt to hide the information; or you attempt to manipulate them.

C. Constitutional Compliance

The AG needs to have a single matrix outlining the broad Constitutional guidelines. he should have a notion of whether the US government's compliance with those standards are good, ineffective, or non-existent. This matrix needs to be one the AG openly discusses with Congress, and he outlines how the areas he defines as being deficient are linked with plans for remediation. This plan needs to be linked with plans, milestones, and calendar dates he can show the public: "Yes, we're on track" or "No, we have a problem: And this is what we plan to do; or we need help." This chart needs to include dissenting views from the DOJ IG, GAO, and Members of Congress -- before publication -- and the AG will be charged with implementing the agreed-to plan.

The public needs assurances the Constitution, not a President's right to be immune to review, is getting defended. The public needs the following:

- What plans does the AG have to ensure that Constitutional obligations of US government officials -- that of not abusing power or violating rights, but defending the Bill of Rights -- is a real interest area, and related to tangible programs, training, and policies that are effectively enforced and implemented?

- When reports of US government misconduct occur, how will the public get a broad view of the policies and plans the AG has in place to ensure the Constitution is first, and that bureaucratic agendas will never supplant Constitutional obligations?

- How will 5 USC 3331 obligations be effectively injected into the DOJ AG oversight, reviews, and monitoring of the various enforcement programs: Not just at the Executive branch, but also members of Congress, and other US government officials?

D. Impeachable Offenses

AG needs to establish an ongoing review of Presidential illegal conduct to include war crimes, prisoner abuse, FISA violations, and other breaches of the Constitution.

- How will DoJ independently track legal issues warranting prosecutor or impeachment?

- How will AG work with the State AGs to bring prosecutors when the President blocks federal prosecutors of Members of Congress or the President?

- What is the plan of the AG to ensure Member of Congress concerns with Presidential illegal conduct are timely resolved through either impeachment or prosecution?

- What plan does the AG have to support an independent branch of government that is solely responsible for conducting investigations outside either Congressional or Presidential meddling?

E. Prosecutor Oversight

There needs to be a method by which Prosecutors are independently evaluated, outside the ABA, which will provide the public with assurances that prosecutors are independent, remain ethics in re the US Atty Manual, and they adhere to the highest standards of conduct. No notice audits are appropriate. The American public is subject to probation officer inspections; the least the AG's office could do is expose the prosecutors to the same types of intrusions.

The public needs assurances that the prosecutors are doing one thing first: Defending the Constitution, not making excuses to prosecute or not prosecute on the basis of political flavors.

- Where are the no-notice audits of prosecutors?

- Where are the reports of prosecutor conduct before courts?

- How will prosecutors standards of conduct be effectively enforced, trained, and subject to meaningful-public oversight and review?

- What is the plan of the Congress and legal community to ensure the public is given the necessary training so they can effectively oversee whether members of Congress, legal counsel, and prosecutors are or are not meeting their oath of office obligations?

- What plan is there to ensure prosecutors are given effective support to bring 5 USC 3331 charges against members of Congress for alleged breaches of their oath of office?

F. Legal Community Outreach

AG needs to develop a plan with legal industry/law schools to ensure up and coming lawyers in the American legal community are well versed in Geneva, Nuremberg, laws of war, and issues of the UCMJ. This skill is required outside just the JAGs: Non-JAGs need to be receptive to these valid legal concerns, which, sadly have been ignored and swept under the table as "quaint." No they are legal requirements on the President, Members of Congress, judicial officers, US government officials, civilians, and the AG: Defend those laws and principles, or you are subject to prosecution.

AG needs to outline a plan to review the ABA model rules; and the State level Attorney Standards of Conduct to ensure the DOJ is getting the right types of people; and the law schools and states are adequately screening their attorneys. Perhaps the State Disciplinary Boards could be awarded grants for modernizing their attorney oversight, training, and screening programs; perhaps the ABA and selected states could lead a model/trial program to more effectively oversee, mentor, and conduct better oversight of legal counsel that has more effectively public involvement, participation, and support: The sytem ensures the Constitution is defended against domestic enemies, even enemies within the legal community inside DOJ and the White House-OVP-political party-Congress-Court System.

The public's concern is the mess we've seen since 2001 has been something that leaves much to be desired of the American legal community. Regardless the state secrets, the public needs assurances that lawyers in the future will have the training, legal support, access, confidence, and tools to effectively challenge abuse of power by the US government; and to know when they need help from the public, and publicly ask for it, not remain silent. The public needs to know the legal community is on the side of the Constitution, not a president that wants to hide evidence of illegal activity.

- What will be done to more effectively create tools within the legal community so these legal abuses are timely challenged?

- What skill set within the legal community needs to be more robustly safeguarded, defended, and developed to ensure the public's Constitution is put first, not treated as an after thought?

- Where will there be no- notice audits of legal counsel to review their compliance with the attorney standards of conduct on Constitutional issues, government oversight, Administration, and key areas of law relating to effective checks and balances in government?

- How will legal counsel for Congress, Judiciary, and Executive Branch be effectivley overseen, disciplined, trained, and mentored to ensure they are putting the Constitution -- not their party or branch -- first?

G. Judicial independence

Current problems include the perceived and real influence of GOP-DNC in prosecutorial decisions, investigations, and watch lists. AG needs to show the public that there is a vetting process for information gleaned from DHS-DOJ watch lists; and that the NSL data has been adequately sealed. The public neds assurances that the watch lists which flow into the no-fly lists are reviewed personally by the AG to ensure that the basis for inclusion on that watch list is for a bonafide reason. Bluntly, it makes no sense to have someone "on the watch list" but then ban them from commercial transportation. There's no need to "continue watching them" if they aren't allowed to travel and they've been denied services, unless your real goal is to send them into exile.

The concern is there is incorrect information in the system; that information has been falsely reported by first responders; and that people have been accused of things without a fair hearing to have the information corrected; nor have the accused been afforded the chance to cross examine witnesses. Wrong, adverse information is in the system without any apparent method to ensure people are given the chance to reform themselves, correct the record, or adequately adjust what may be conduct someone misunderstood. The worst situation is for someone -- inside government -- as an effort to distract attention from their abuse of power or violation, to turn the attention by accusation on an innocent bystander. The public needs to be given a fair and reasonable chance to explore whether that original accusation was intended to distract attention from misconduct by DHS, first responders, JTTF, or someone else hoping to abuse an apparent anonymous-secret reporting/data archiving system.

PARALLEL EFFORT

While the above types of programs are being implemented, the AG also needs to lead an effort with the public and Congress that will openly discuss what the backup plans are: If the above fails, what do we do next?

- Discuss some changes to the Constitutional System?

- Revoke powers delegated to the US government and redelegate them to the States?

- Create a separate branch of government to conduct DoJ-related activities: Prosecution, investigation, and statutory enforcement?

- Divide the Presidency into more than one person?

- Create another branch of Congress to more effectively check bills to ensure Constitutionality; and engage in more effective interactions with aggrieved private citizens on issues before sending them to the House?

The US government has the chance to get this right. If you fail, We the People are prepared to solve this problem. It's not that hard. Stop the excuses. Provide leadership. Or you will wish you had. Others are prepared to solve this problem lawfully.

Anonymous wrote on November 1, 2007 5:23 PM:

26 of 172; Sen Kennedy 17 of 64

Concern: It appears DoJ Staff counsel provided inputs to the witness. Notice closely the responses on page.

Notice the boiler-plate-type language in the responses, eerily similar to the DOJ Staff counsel "responses" when the NSA violations first surfaced in Nov-Dec 2005 in NYT. [Para: "As I testified, FISA . . ."]

Sample: "A difficult separation of powers question may arise to the extent that the President's authority comes into conflict with the FISA limitations."

Sample: "It is well established that the President has . . ."

Note also the case citations in the response on this page; then contrast this response with other responses indicating witness was "not familiar" with the details.

Note the second paragraph is less assertive, and contains more conditional phrases. this suggests that the authorship of the first paragraph may not be the same as the second.

Followup

1. What inputs did the witness have from DoJ, White House, outside legal counsel, or others when drafting these responses?

2. Is there a reason the language within the responses on this page seem to echo the sentiments, language, tone of the DOJ Staff counsel responses -- that were not helpful -- to congress on the FISA issues?

3. How does the witness explain the detailed case situations on this subject on this page; but in other questions the witness said he was not familiar with the issues?

4. Why does the witness emphatically assert that it "well established" principle in one sentence; but in another the witness says, "he believes it is a well established principle" on a related issue. Is there a reason for this difference for whether one is or is not sure whether a principle is "well established"?

5. Did the witness have any inputs for his responses from DoJ or others?

6. Are all the words within the witness' responses to the Senate his own words; or were some of the words taken from others; if so, who were they?

Anonymous wrote on November 1, 2007 7:51 PM:

Subj: Response does not address question.

Sample See: 25 of 172

This analysis focuses on Witness' response to Senator's Question: "May the President indefinitely imprison without charges a US citizen, seized on US soil, solely on the President' determination that the person is an "enemy combatant."

A close analysis of this response helps highlight apparent flaws in the nominees legal analysis, responsiveness, and alleged deference to illegal Presidential conduct. We analyze the information on the assumption this witness, or someone like him, will become AG. We encourage future researchers to examine the relationship between [a] initial analysis of witness' response; and [b] subsequent problems during AG on-the-job performance [responsiveness to Congress.

This analysis may also give outside observers -- without access to Presidential papers -- an idea of the types of legal arguments an AG may make. Implicit in the argument/response to the Senate are various legal arguments, reasons, and flaws which will form a pattern and will likely prove useful in identifying the range of legal opinions an AG in secret might provide to the President.

Concern: Witness citing Hamdi [ 542 U.S. 507 ] does not adequately address Senator's concern.

Summary Concern: Witness leaves too many Constitutional/Bill of Rights issued unaddressed. Does not provide confidence that he will "preserve, protect, and defend" the Constitution, when he shows blind deference to non-Constitutional legal outcomes.

Concerns:

1. Response does not address how invalid information, behind a "presidential finding" is corrected.

The question raises the issue of whether noncharged American citizens can be detained. This, as we saw in Pakistan, is a concern because if offered money, American citizens could be induced to say anything; the DHS watch lists are databases where non-vetted information is obtained. On accusation alone, without getting "the other side of the story", Americans are accused of wrongdoing in secret.

2. Citing Hamdi does not address American citizen's concern behind Senator's Question

Cases in re American civil war contract the assertion that American citizens can be detained indefinitely. The Concern behind the Senator's question isn't narrowly on whether there is or isn't combat; but whether -- on accusation alone -- a citizen can be detained -- for whatever reason -- indefinitely. However, contrary to the witness' claim, Hamdi did not leave "indefinite detention" an "open question" but concludes the opposite, detention can be finite in re prisoners: "Certainly, we agree that indefinite detention for the purpose of interrogation is not authorized." [ See Hamdi, 542 U.S. 507 ] Saying "not authorized" is clearly "not an open question" but closed, specific, not permissible, and clear: It shall not occur. Ever.

Hamdi's legal status is different than what the question raises. Hamdi was a US born person, picked up near a combat zone. However, the concern behind the question is that an American citizen, not connected with any combat at home or abroad, might -- on accusation alone -- be left in prison without any chance of having their case reviewed. Witness's response fails to show how the concerns of the question are raised; or how -- on accusation alone -- American citizens living in the  United States are not falsely accused, then detained using evidence they are not allowed to see.

3. Responsiveness: Witness fails to discuss relevant legal opinions

It's absurd anything for witness to claim -- by citing one case, Hamdi -- that something "is an open question" when other cases, and the Constitution itself state the opposite: Indefinite detention -- the implicit rejection that a prisoner can challenge their detention -- can only occur when Habeas has been denied. Unless Habeas has been lawfully denied, someone has to be either charged with a crime; or they have to be released. It cannot be argued that the issue of indefinite detentions of American citizens is an "open question" when the Supreme Court stated GTMO detainees -- non-US-citizens -- are entitled to challenge their detention.

4. Apparent Mental Reservation, 5 USC 3331 issues

Constitutional requirements appear to be moving target for witness, despite oath to contrary: Fixed Standards to be defended against domestic enemies who ignore these legal obligations

Witness fails to account for situations where prisoners, on basis of bounties or false evidence, are detained on error without a credible link to any crime, illegal conduct, or unlawful activity. The problem the witness has, in providing this kind of response, is that it's not clear whether he's picking and choosing from the Constitution consistent with the intent of the Framers; or ignoring the Constitution on assertion that the Constitution prevents the President from doing something which the President, himself alone and without judicial or legislative review, decides must be secretly done. The witness fails to provide assurances that he's interested in ensuring checks and balances of the other two branches, and the Constitutional requirements in re Habeas, are respected. He has no choice by oath; but his answer would have us believe he has room to maneuver. He and the President do not.

5. Separation of Powers Problem

Concern: Apparent Witness Support for Non-Constitutional Reviews/Executive Illegal Assertion of Non-delegated Judicial Power

Concern: Witness Waffling on Criminal Procedure, Despite Clear Constitutional Requirements

Witness response doesn't address issues of information inaccuracy, non-judicial reviews, or secret evidence. The same abuses we've seen in GTMO could be applied to non-charged American citizens: Taking information from unnamed informants, applying that information to profiling regardless its accuracy, using opposition to inappropriate intrusions based on incorrect information as a basis to label people uncooperative and a security risk.

6. Unconvinced Lessons of GTMO Applied to American Citizen Detention

Witness fails to address the problems with evidence at GTMO; nor addresses how these problems at GTMO will not occur in re non-charged citizens.

The right answer should have included:
- References to Bill of Rights, and right to a fair hearing
- Right to access counsel, confront witnesses, and not subject to cruel/unusual punishment
- Discussion on Habeas: How President can indefinitely detain someone despite Congress not expressly concluding there has been no rebellion; and Habeas has not been denied by Congress during times of invasion or rebellion.

7. Non-Delegated Judicial Power: Inadequate Presidential Review of Evidence

Witness fails to explain how an incorrect assertion of "enemy combatant" will be reviewed; or how -- on basis of false, incorrect, or fabricated evidence -- an incorrectly detained US citizen will remedy the invalid/illegal detention.

On Presidential determination alone -- without a finding by Congress that there has been an invasion or rebellion; and Habeas has not been denied, then "no, the President may not indefinitely detain/imprison without charges any US Citizen" and the President has no power, on his own to label someone an "enemy combatant" unless that person has been so found -- through evidence which the prisoner can challenge -- that they are [a] involved in combat; [b] not engaged in a domestic civil war; [c] involved with material support for combat operations, not merely holding a belief; and [d] acting outside all Constitutional protections related to freedom of assembly, right to advocate for change, holding religious beliefs, or exercise any constitutionally protected right [travel, association]; and [e] there is admissible evidence the person is engaged in activity that includes violence.

Until the above criteria are met, the President is not lawfully detaining anyone; especially when Congress and the Courts are not involved, the President is acting at the lower ebb of his power. [See Youngstown]

It is absurd for the witness, in citing Hamdi, and ignoring the Constitution in re Habeas, to suggest this is an "open" question. No, the President may only detain someone -- without charges -- if specific criteria are met. Witness fails to justify confidence of his understanding of Habeas. Note this is alarmingly siilar to Gonzalez response [paraphrasing: "Constitution does to protect the right to Habeas; it only says the Government cannot deprive someone of that right."]

Whether the Supreme Court did or didn't leave this issue of "Presidentially-ordered detention an open question or not" misses the fundamental Constitutional question: The witness cites no Constitutional language permitting the President -- on his own -- to conclude -- outside Congress -- that there [a] has been an invasion or rebellion (there may or may not be, but Congress hasn't said anything as required); or [b] Habeas shall be denied to non-charged American citizens (This is not lawful, regardless what the AG or President assert, unless Congress makes this finding); or [c] American citizens can be approached, arrested, and detained without mentioning the reason for that detention (The Bill of Rights protects the right to access to counsel, to know the charges; these rights cannot be deprived unless Habeas -- under a finding by Congress, not the President -- has been Constitutionally denied).

Anonymous wrote on November 1, 2007 9:07 PM:

Subj: FISA and Geneva are both laws of war, applicable to the President during war time.

Ref: 25 of 172 [16 of 64], and 26 of 172 [17 of 64]:

The same AUMF used to wage war under Geneva is also the same AUMF showing that FISA is applicable as a law of war to the President. Once the President sought the AUMF, he agreed to be bound by these two laws of war: Geneva and FISA.

Concern: Witness' consecutive responses appear contradictory, not reconcilable on issues of power, ministerial duties inre different laws of war on same AUMF.

Concern: Witness takes two contradictory views on power in re Hamdi and FISA.

The issue of "intrusion by another branch into power" is a phony argument when the President -- in re FISA -- has agreed to that legal requirement. FISA isn't an issue of power; its an issue of ministerial duties. Geneva and FISA both impose ministerial requirements on the President during war time.

The witness confirmed in writing to the Senate in re Hamdi that the President does not have absolute power; he must also, by implication, not have absolute power to ignore FISA on his own; nor can he on his own, exercise powers which FISA does not grant: The power to ignore the FISA court; or not exclusively use the FISA Court to do what the President wants to do.

Of concern is when the witness writes: "I believe that the best thing for the country would be for the Congress and the Executive Branch to work together so as to ensure that we have the laws necessary to protect the country." This misses the point: We do have the laws in place - the Constitution and FISA; we don't need to spend time passing new laws; we need judicial action to adjudicate the law and alleged illegal activity, without Presidential or Congressional intrusion into the Judicial branch. The Witness appears to be making an argument -- retroactively -- that some laws, like FISA -- which were ignored -- should be left unenforced because there is a "concern with power"; while other things in re Hamdi, are a valid check on Presidential power.

Follow-up: Witness needs to better explain responses.

We compare and contrast the issues raised in these two consecutive questions.

- - - - - -

Summary of 25 of 172 [Senator Kennedy Questions, 16 of 64]:

Question 1: "May the President indefinitely imprison. . . "
Witness Answer: "I believe that the Supreme Court . . .left this an open question . . ."

Question2: "Are there any constitutional limits . . ."
Witness answer: "Yes. . . "

- - - - - -- - -

Issue: How can something be an "open question" when -- a plain reading of the Hamdi language does not leave it open, but closes the door on indefinite detention; yet the witness in the second response says there _are_ Constitutional limits. We're not disputing that there are Constitutional limits; only the narrow issue of how the witness can say something is an "open issue" when he, the witness, then argues the opposite: There are limits. "Open issues" are not then constrained.

Witness would ask that we accept two states of reality: One without bound; and one with constraints -- at the same time. This defies reason. Curiously, the witness cites the same case: To arrive at two, inconsistent legal conclusion with respect to standards [Whether there are or are not bounds; whether there are or are not open questions; whether there are or are not limits on power.] This sound more like Addington than a Judge.

Note also, the question asks about "Constitutional limits" -- implicitly, a limit on power -- which the witness in other answers asserts, "there is no dispute . . . " or "it is clearly established . . ." that there may be a Constitutional concern between Congress and the President. [See page 26 of 172; para: "As I testified, FISA . . . "]

How can something be a "difficult separation of powers question" when the "President's authority" comes into "conflict with the FISA limitations"? The witness -- in re Hamdi -- testified in writing that there are limitations, which the Court recognizes, that prohibit the President from doing something.

The detainee treatment act, Geneva Conventions, Habeas, are governing law: Whether those lesser laws are or are not Constitutional is a secondary issue. The concern is the witness has argued in re Hamdi that power can be constrained and there are limits; but when we discuss issues of FISA violations, the witness asks us to believe the President's authority is at its lowest ebb. This is incorrect: the President as NO POWER to ignore either the Constitution or the Act of Congress. It is incorrect on page [26 of 172; 17 of 64 ] to suggest a "branch of government has authorities another branch cannot take away." Passing a law -- which the President agrees to follow -- has nothing to do with power: It is a legal requirement and ministerial duty. This President got caught violating FISA: but wants to pretend, after getting caught, that the law "cannot constrain power". He agreed to the opposite: In relying on FISA, he was delegated power to lawfully violate the 4th Amendment. He doesn't like that his expanded use of power -- beyond what the Constitution allows -- had reservations which he agreed to; but was caught violating. His problem: He still hasn't figured out how the evidence proving the violations and alleged telecom coordination with other NSA-activities was lawfully obtained. He has a problem. That process continues in re war crimes evidence collection. There is no statute of limitations for war cries; and Member of Congress and Judicial Officer decisions to ignore Geneva/rendition issues in re laws of war could be adjudicated as a subsequent war crime against Members of Congress and Supreme Court Justices. We will see.

FISA was created on the condition that the expanded use of Presidential power would be conditioned upon the President following specific rules. It is absurd to argue FISA "constrained" the President: Without FISA, the President would not have the legal authority to do anything which FISA permits.

When witness says laws are needed when "Protecting the country" means also protecting the Constitution, even from domestic enemies. Physical security, when devoid of procedure and evidence, is not a plan not security: It is reckless abandon for civility which neither enforce the law, defend rights, nor send any message the leadership is capable of organizing resources to provide security. Where the President ignores reason in "promising security, but ignoring rights" he's not sending any message he has a credible plan in place; nor is he relying on evidence of feedback to credibly adjust his plan.

This issue isn't just the law, but whether reason -- required to credibly craft, implement, and adjust security plans -- guides leadership; or whether the leaders are making excuses to defy reason. We use the law not just as a whip to compel assent, but also as a yard stick to evaluate to what extent the leadership is or is not prudently assert their oath, rallying experts, marshaling evidence, and creating credible plans. The fruit of that prudence is security and defense of civil rights; reckless abandon of reason gives us, and Franklin reminds us, neither security nor freedom but incompetent Tyranny which abuses power. This is contrary to our Constitution, our oath, the Founder's motivation for acting; and defies the supposed things we are supposedly "fighting for" in this war on terror.

The witness might as well have argued, "We're fighting a war, don't use reason to evaluate us whether we are or are not reckless in waging war, defending rights, or doing our job." Without reason -- and the use of the best minds -- liberty cannot be defended, much less advanced; with incompetent leadership -- left unchecked -- we cannot hope a single office in DOJ will be effectively managed, not to mention what the staff in DOJ will be asked to follow.

Follow up:

1. How does the witness reconcile his responses in re Hamdi; with the issues in re Truong: How can the President/Witness recognize that there are some limits on Presidential power in re prisoner detention; but then ask that we believe there are "no limits" or there are "constitutional issues" ii re FISA?

2. How does the witness say that a conflict would be governed by "Youngstown"; yet the FISA -- and conclusion from Hadmi, Supreme Court -- do not reference the same case, but rely on the Supreme Law as a basis to authorize, implement, and enforce FISA?

3. How can the President -- despite Constitutional processes to pass FISA -- argue it is "not Constitutional"; yet the witness agrees in re Hamdi that the President's power can be constrained, even in war time through Geneva in re treatment of US citizens or enemy combatants?

4. Why is the Witness asking that FISA standards -- much like Geneva -- cannot be fully enforced; yet he contradicts himself in re Hadmi when he acknowledges during war time that a President's power is not absolute, can be constrained, and is subject to law?

5. How can the witness argue in re Hamdi that Geneva binds the President during wartime; but another legal requirement in FISA cannot bind the President?

6. Is there any evidence that the Geneva conventions in re Hamdi were revoked or not enforceable; how can the witness say that another standard like Geneva applicable during wartime -- in this case FISA -- is not applicable: How does the witness explain during the _same war_ that _all_ legal requirement related to warfare of _Geneva_ are applicable; but _no_ legal requirements in re _FISA_ are applicable? Same war, same AUMF, but two different standards on whether the "laws of war -- Geneva or FISA" are or are not applicable. Why: Is it "unfair" to ask why there is a double standard on whether the laws of war do or do not apply?

7. Is it the position of the witness that "governing law" may or may not be the Constitution; that a loophole in one case can be applied to another legal issue?

8. In re Hamdi, is the Witness claiming there are limits on power in re prisoner detention; but asking the Congress and public to believe in re FISA issues that these same limits would be a "problem" if Congress attempted to enforce the law?

9. What does the witness mean by "authorities"?

10. Is it the witness' view that "authorities" means "power": Why is the witness referring to the President's power in the plural form; Article II is a singular delegation of one power: Executive. Plural "powers" is only in Article I. what is the witness explanation for the apparent addition of the "s" after Power in Article II when discussing "authorities"?

11. How can the witness claim in re Hamdi that the President is constrained; but ask us in re FISA that this "authority" may not necessarily be constrained?

12. What is the witness' view of "power" as it relates to a ministerial duty?

13. How does the witness argue that Congress and the President should work together on new "laws necessary" when the existing, Supreme, and promulgated laws are getting ignored: How can some laws be a "problem with power intrusion"; yet the witness agrees in re Hamdi that the President does not have absolute power to detain someone indefinitely?