Posts from — December 2005

The British have some wonderful Christmas customs that have survived the incursion of Christianity, especially the Puritan party poopers. Stealing customs from the Celts, Germans, and Scandinavians, they have created a wonderful holiday that I fondly remember from time spent there.The bird is a European robin that is featured on British Christmas cards, as it is a Winter bird in England, unlike the fair-weather laggard of the same name in America.

If you read the Harry Potter books you will get a taste, but not the full effect of a British Christmas. A full-on Christmas dinner is wretched excess to the n^th degree – Thanksgiving on steroids.

Don’t worry, kids, they’ll miss again, if it even launches.

Once again: there is a major difference between the military and the police. The police worry about rights; the military doesn’t. The police get in trouble for killing innocent people; the military considers them “collateral damage”.

This difference is why there are so many restrictions about using the military within the United States and outside of the context of a declared war. The Shrubbery wants to convince everyone we are at war, so he can ignore rights and the damage of his actions.

You are not going to do permanent damage to terrorists with the military. You have to hunt down terrorists and that requires investigative tactics not military tactics. This bungling around spying on half the universe and playing with Geiger counters in mosque parking lots is not making us safer, nor is it finding Osama bin Laden. This is the abuse of power just to prove he can do it.

Maybe I should find a portrait of Charles I of England and march outside the White House to remind the resident what the tradition is for men who believe they are absolute monarchs among English-speaking nations. That issue was settled in 1215 and restated to Charles in 1649 prior to his beheading for treason.

While it is not quite as cold as Bethlehem at this time of year, the “angels on high” are out in a 10 knot North wind at 45°, which is a near freezing wind chill. Needless to say, mothers are not permitting warm-up suits under their robes, so those “angels” are not posing in rapt attention to the “child” in the “manger” below, who have a wind break and lights to warm them up, and probably heating pads and some animals to generate a few BTUs.

It will be a “miracle” if those kids don’t fall off the platform they’re on while they jump around in their “wings” trying to stay warm. Someone at least relented enough to provide them with white “hoodies” to wear with their robes, but long johns, mittens, and snowmobile boots would help a lot.

Odd late night thoughts:

When the Merchant of Venice was written you had a man playing a woman playing a man to distort justice by pretending to be a “legal expert” – kind of like Ann Coulter…

[No more late night snacks]

™ ^{[Kevin Drum]}

Peace on Earth

And to All of Good Will.

[Editor: Merry Whatever from the Crew.]

Friday Ark

The “conventional wisdom” is that District Judge James Robertson suspected that some or all of the warrant requests were based on information from the illegal program, “fruit of a poisoned tree”, which mocks the purpose of the court.

Judge J. Michael Luttig, a very conservative member of the very conservative Fourth Circuit Court of Appeals, has handed the Justice Department a stinging rebuke in the ruling he wrote refusing to transfer Jose Padilla to civilian authorities. The judge stopped just short of accusing the DoJ of lying in their testimony before the Court of Appeals.

The case now goes to the Supreme Court, and I wouldn’t count on any Justice other than Clarence Thomas as a sure vote for the government. Judges don’t like going out on a limb when making a decision, and the Fourth Circuit went out of its way to affirm the power of the government to indefinitely detain “enemy combatants”.

The picture of Padilla painted before the Court of Appeals is in sharp contrast with the charges filed against him in a Miami court, and the timing of the indictment indicated that the DoJ did not want the case to appear on the Supreme Court docket.

Lying to judges makes them unhappy, and an unhappy judge can throw you in jail until he/she feels like releasing you. While we aren’t supposed to have kings in the US, a Federal judge comes very close.

Congress and media have been slow to react to the illegal behavior by the Shrubbery, but the judicial branch seems to have been stirred to action.

The problem for the media is that they don’t have any “sources” among public workers. They can’t flip through their rolodex and find someone they know who can present the reason workers are willing to give up two days pay for every day they are out on strike. They can’t talk to the union officials because a “gag order” is the first thing that is imposed.

While the officials of the public agency can’t talk, the rest of the local government can go to town and berate the workers for not caring about “the public” who are inconvenienced because the workers are not happy to accept whatever “their masters” deem is sufficient.

The MTA, the agency in charge of the transit system, pushed until they got a strike. While having a billion dollar surplus, they pushed the workers to give up pensions and health care benefits for new workers. This was never about wages. Public workers will never walk out over wages, but the media always paints the workers as greedy.

Workers strike over working conditions, pensions, and health care. That’s the way it has always been. If you have a public workers strike in your area, look at the background and you find that the politicians want to do something that puts workers in danger, steals their retirement, or reduces their health care. No one goes to work for the government for the money: it’s for the benefits. You work for the government for the security offered by the benefits. It guarantees that you will never be rich, but you and your family can survive in reasonable comfort.

The people in charge these days think that Ebenezer was wrong to change his ways, and want to return to the personnel policies of Scrooge & Marley. These are people who think it is fine to offer pensions, but unreasonable to be required to pay them. They abolished slavery and claimed to be virtuous, but neglected to state that employees were cheaper than slaves. If you own slaves you have to take care of them because they have value in money. If employees get old or sick, discard them and hire someone else. That employees were cheaper than slaves was one of the great economic discoveries of the 19^th century.

When you look at the public workers strike, take the time to look at the compensation package of the administrators. If these cuts are such a great idea, why don’t they get applied to the top management first? What about the elected officials?

U.S. Constitution
Article 2 – The Executive Branch
Section 3 – State of the Union, Convening Congress

He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.

[My emphasis]

The use of the verb, shall, makes this a required function, not an option. The President is required to enforce the laws of the nation, all of the laws, not just the laws he/she personally approves of, and there is no wartime exception.

The man has no problem using the perquisites of the President, but doesn’t seem inclined to fulfill the duties of the office. He frequently refers to himself as the Commander-in-Chief, but fails to understand the responsibility that position entails.

It might surprise some how angry I am about the NSA spying. My anger is based on having served as a member of the National Security Agency and understanding the position of those who are currently serving. Most people will never see, or be aware of the memorial to those who have died while serving in the National Security Agency. Their names are not publicized and their missions are classified. They worked and died in the shadows, but I knew some of them as people with families. Those now working as members of the National Security Agency have been placed in a terrible position by the man who supposed to be their leader.

If you are a Master Sergeant with 18 years of service you are faced with obeying an unlawful order or losing your retirement two years away. You can be charged with disobeying a direct order if you refuse to participate. You can be charged with illegal wiretapping if you do participate. The operation is classified, so you can’t seek assistance from the Staff Judge Advocate [military lawyer], or anyone else. You are not protected by the “whistleblower statute”, because you work for an intelligence agency. You can’t resign, because your family doesn’t have “friends” in the power structure to “fix it” for you. Your leader has screwed you over because of his hubris, his arrogance. He doesn’t understand “duty”, and has no conception of “honor”, and couldn’t care less about your life, family, or future.

That’s why I’m more angry than those who only upset about the illegal spying on Americans. I’m angry for those who are spied upon and those who are forced to do the spying. That’s why this embodiment of scum should be impeached, indicted, and sent to prison.

For all who celebrate this day the warmest of wishes – on many levels.

July 17, 2003

Dear Mr. Vice President,

I am writing to reiterate my concerns regarding the sensitive intelligence issues we discussed today with the DCI, DIRNSA, Chairman Roberts and our House Intelligence Committee counterparts.

Clearly, the activities we discussed raise profound oversight issues. As you know, I am neither technician nor an attorney. Given the security restrictions associated with this information, and my inability to consult staff or counsel on my own, I feel unable to fully evaluate, much less endorse these activities.

As I reflected on the meeting today, and the future we face, John Poindexter’s TIA project sprung to mind, exacerbating my concern regarding the direction the Administration is moving with regard to security, technology, and surveillance.

-2-

Without more information and the ability to draw on any independent legal or technical expertise, I simply cannot satisfy lingering concerns raised by the briefing we received.

I am retaining a copy of this letter in a sealed envelope in the secure spaces of the Senate Intelligence Committee to ensure that I have a record of this communication.

I appreciate your consideration of my views.

Most respectfully,

Jay Rockefeller

Links for abbreviations, laws, and bad ideas:

• DCI – Director of the Central Intelligence Agency
• DIRNSA – Director of the National Security Agency
• TIA – initially Total Information Awareness, later changed to Terrorist Information Awareness.
• Fourth Amendment – restrictions on national security wiretapping
• FISA – Foreign Intelligence Surveillance Act[50 U.S.C. Chapter 36]
• Posse Comitatus – Posse Comitatus Act[18 U.S.C. § 1385] 1878
• Iran-Contra – John Poindexter’s last major project

First of all, FISA deals with wars and declarations of wars – the President has a two-week period during which he/she can conduct warrantless wiretaps, we are well beyond that limit.

Second, the Posse Comitatus Act specifically deals with the use of the military within the US. It requires Constitutional authority or an act of Congress, not the whim of a President.

Third, what is being done is an iteration of the TIA, which Congress specifically rejected because of concerns over violations of the Fourth Amendment.

Fourth, if you take the time to read the Declaration of Independence you will see that the main reason for the Revolution was an abuse of executive power by the King. The signers risked their lives and fortunes because they were fed up with the unrestricted power of the crown.

Taken all together it is obvious that the framers of the Constitution intended to limit power, not grant it, wholesale, to any of the three branches of government. The only way of gaining a new power is by amending the Constitution. It is only by virtue of the Sixteenth Amendment that the Federal government can levy the income tax.

The only constitutional right that can be limited during a war or rebellion is the writ of habeas corpus, but that can only be done where the courts are not functioning because of the war or rebellion.

At this point it should be obvious that they can’t comply with FISA because they aren’t targeting anyone, they are grabbing everything out there, without any regard to what they are gathering. They are hoping to “get lucky” and find something useful.

The backers of “King George” claim that the only limits on the power of the President are elections or impeachment. If that is their view, the solution is obvious: Impeach the arrogant son-of-a-bitch. Maybe we can then actually get on with business of fighting terrorism and actually catch Osama bin Laden.

[Update: The meeting referred to in the letter featured: Richard Cheney [VP], George Tenet [DCI], Lt. General Michael Hayden, USAF [DIRNSA], Senator Pat Roberts [R-KS], Senator Jay Rockefeller [D-WV], Congressman Porter Goss [R-FL], and Congresswoman Jane Harmon [D-CA]. Goss is the current DCI, and Hayden is now the Deputy Director of National Intelligence under John Negroponte.]

The other question is: why use the National Security Agency for the surveillance? NSA has a lot of capabilities but telephone tapping is not exactly its “cup of tea”. This is “trowel” work and NSA has bulldozers.

Off the top of my head I can think of a very good reason for avoiding the court and using NSA for the intercepts: this isn’t a targeted operation, it is a hoover¹.

They have resurrected a variation on John Poindexter’s Total Information Awareness program and are data mining international telephone calls and e-mails. They have no names to put on the warrants, because they aren’t looking at individuals, they are looking at classes of people. They were told to shut down this program, but they just change names and offices and continue their illegal activities.

1. [from the vacuum cleaner brand name] Sucking up whatever is available and seeing what filters out.

It is a violation of the Posse Comitatus Act(18 U.S.C. § 1385) 1878, which limits the activities of the military within the United States. The United States military may only take those actions that are specifically authorized by the Constitution or an act of Congress.

The National Security Agency is a joint services component of the Department of Defense; it is part of the military, which is why it is headquartered at Fort George G. Meade in Maryland and the Director is a uniformed flag officer.

After the end of the Cold War, NSA attempted to expand its mission by performing security audits on the computer systems of other government agencies, but the request was denied because the activity would require Congressional authorization or it would violate the Posse Comitatus Act.

The newer laws simply increase the illegality.

The Shrubbery’s claim that “a newspaper jeopardized national security by revealing that he authorized wiretaps on U.S. citizens after September 11” is patently absurd. The “bad guys” are well aware that we can monitor communications, and that other foreign countries also “listen in” on international calls.

This was an administration that informed bin Laden that we were tracing him with his satellite telephone. As a result we caught bin Laden’s bodyguard who left with the phone to lay a false trail. During the Bolton hearings there were multiple references to NSA intercepts that involved American officials. The administration that revealed the identity of a Central Intelligence Agency asset working on monitoring the proliferation of weapons of mass destruction has a lot of gall attempting to claim that this article does any injury to the national security. The only security affected by the Times reporting is the job security of those involved in these illegal acts.

Someone needs to explain to the White House that the divine right of kings was discarded several centuries ago and no one, even the resident of 1600 Pennsylvania Avenue, is above the law.

Al Qaeda wins when the United States acts in an illegal manner. When we cast aside our laws in the name of “security”, the terrorists advance. The Shrubbery needs to find a little backbone and stop caving in to threats. The system that survived the combined might of Nazi Germany, Fascist Italy, and Japan, that outlasted the threat of the nuclear forces of the Soviet Union can surely overcome a motley crew of nutjobs without devolving to a government more suited to the 16^th century.

While I can understand the feeling beneath that statement, what is worse is asking the military and other government employees to give up their honor in support of lies. You need to know that the vast majority of government employees are not political hacks and they really are trying to do their jobs according to the rules.

The Shrubbery introduced the ultimate corruption to government: the corporate model. In a corporation the purpose of lawyers is to make the decisions of management “legal”, not ethical or correct, but merely within the letter of the existing law. That is what the lawyers acting as counsel to this administration are doing.

In the last century the executive branch would ask for a legal opinion as to whether an action was legal, but now the question is how to present the action as legal. When career attorneys refuse to going along with this deceit they are removed from the decision process to be replaced by political appointees who will play by the new rules.

This is how they came up with an executive order that contravenes the clear meaning and intent of the laws governing domestic surveillance and has the National Security Agency intercepting the communications of American citizens.

I was part of the National Security Agency for 8 years. This conduct is illegal. I was told it was illegal in an official briefing. There were specific instructions as to the course to take if it occurred by accident, and reporting requirements to prevent the accident from recurring. This isn’t a close call, and it’s not a matter of interpretation, it is illegal.

The New York Times held this story for a year. They found out about it from Agency insiders without any doubt, and they should not have held up the story while the criminals in the White House continued to claim dictatorial powers based on a non-existent declaration of war on TERROR. We have a system of checks and balances. That system isn’t suspended for wars, real or imagined.

It is an unconscionable abrogation of their basic position in the American society that we have found yet another example of the media withholding a story that they had before the Presidential election that would have reflected badly on the Shrubbery and his culture of corruption. The American people were systematically excluded from the information to make an informed decision on the fitness of the current administration to remain in office.