Adjuvant • December 24, 2013 2:37 PM

@It’sTheParallelConstruction,Stupid; @Plunky “All of the above can be traced back to 9/11 and the patriot act. Trust was a victim, can we ever get it back?”

Emphatically not, until Congress reviews the present State of Emergency of which the Patriot Act is but an external manifestation, which has been quietly reauthorized every year since 9/11. This review is in fact REQUIRED by public law (50 U.S.C. 1622), but seems simultaneously to be prohibited by “secret” law. I shall explain.

It’s very good that we’re now openly discussing the phenomenon of “parallel construction” in criminal cases. There remains, however, a far more fundamental problem that very few people have had the intestinal fortitude to address. This might be called, by extension, “parallel constitutionalism.”

The “parallel constitution” presently in effect is rooted in emergency Continuity of Government plans which were originally developed for application in the event of a global thermonuclear conflict, but which have been cynically repurposed. These were put into effect on 9/11 and have been annually reauthorized without Congressional review in direct contravention of (public) law. Project Censored provides details in this fine summary from 2010. A poignant excerpt:

“9/11 met the conditions for the imposition of COG measures, and we know for certain that COG planning was instituted on that day in 2001. The 9/11 Report confirms this twice, on pages 38 and 326. … What few have recognized is that, nearly a decade later, some aspects of COG remain in effect. COG plans are still authorized by a proclamation of emergency that has been extended each year by presidential authority…”

[see: http://www.projectcensored.org/supplanting-the-united-states-constitution-war-national-emergency-and-continuity-of-government/ ]

The original item Project Censored cites is an essay by the redoubtable Prof. Peter Dale Scott, originally published here:
http://japanfocus.org/-Peter_Dale-Scott/3448
and based on an address to the Commonwealth Club of San Francisco which may be heard here:
http://www.commonwealthclub.org/node/60744

From the Japan Focus article (footnotes removed for clarity in this format):
“The National Emergencies Act, one of the post-Watergate reforms that Vice-President Cheney so abhorred, specifies that: “Not later than six months after a national emergency is declared, and not later than the end of each six-month period thereafter that such emergency continues, each House of Congress shall meet to consider a vote on a joint resolution to determine whether that emergency shall be terminated” (50 U.S.C. 1622, 2002).The law does not permit Congress to review an emergency; it requires Congress to review it.

Yet in nine years Congress has not once met to discuss the State of Emergency declared by George W. Bush in response to 9/11, a State of Emergency that remains in effect today. Appeals to the Congress to meet its responsibilities to review COG have fallen on deaf ears, even during periods when the Congress has been dominated by Democrats.”

And in this we may glimpse the de facto ascendancy of “secret” law. Please indulge me in reproducing two more excerpts (footnotes removed):

First:
“There is no way to determine how many of the constitutional changes since 9/11 can be traced to COG planning. However we do know that new COG planning measures were still being introduced in 2007, when President Bush issued National Security Presidential Directive 51 (NSPD-51/HSPD-20). This Directive set out what FEMA later called “a new vision to ensure the continuity of our Government,” and was followed in August by a new National Continuity Policy Implementation Plan.

Under pressure from his 911truth constituents, Congressman Peter DeFazio of the Homeland Security Committee twice requested to see these Annexes. When his request was denied, DeFazio made a second request, in a letter signed by the Chair of his committee. The request was denied again.”

Second: “Former Congressman Dan Hamburg and I appealed publicly in 2009, both to President Obama to terminate the emergency, and to Congress to hold the hearings required of them by statute. But Obama, without discussion, extended the 9/11 Emergency again on September 10, 2009, and again a year later. … One Congressman explained to a constituent that the provisions of the National Emergencies Act have now been rendered inoperative by COG. If true, this would indicate that the constitutional system of checks and balances no longer applies, and also that secret decrees now override public legislation as the law of the land.”

By now the klaxons in any thinking person’s brain should require no further amplification. Allow me nonetheless to juxtapose this basic observation from Lawrence Lessig:
“A “free society” is regulated by law. But there are limits that any free society places on this regulation through law: No society that kept its laws secret could ever be called free. No government that hid its regulations from the regulated could ever stand in our tradition. Law controls. But it does so justly only when visibly. And law is visible only when its terms are knowable and controllable by those it regulates, or by the agents of those it regulates (lawyers, legislatures).” [ from: http://www.gnu.org/philosophy/lessig-fsfs-intro.html ]

Until these fundamental matters are tackled and the rule of public law is restored in this country, all attempts to bring the TLAs to heel will remain mere window dressing. If my post here constitutes your first exposure to the full extent of this sad state of affairs, that should in and of itself be terrifying: before these matters can be addressed at all, they must be public knowledge and a focus of public indignation. I believe I have pointed to the [extra-]constitutional nest from which this army of legal cockroaches proceeds. I would be most obliged if this submission were to become a focus of further discussion and dissemination.

Adjuvant • December 25, 2013 10:04 PM

@It’sTheParallelConstruction,Stupid
Occam’s razor is often a useful heuristic, providing a robust defense against being “sucked in,” as you say, to various intellectual time-sinks and halls-of-mirrors. I’m afraid, though, that you have misapplied it here.

Your reference to “the joint resolution, once voted into being…” betrays an elementary misunderstanding of the legislative process. Joint resolutions are in no sense “voted into being” qua joint resolutions; rather, they are introduced by one or more legislative “sponsors” in either the House or the Senate and subsequently become matters to be dealt with, working their way through the various relevant subcommittees and committees according to the standing rules of the relevant legislative bodies and governing statutes.

Here is a fine overview of this process:

I am neither a lawyer nor a parliamentarian, but in my reading this statute mandates implicitly that a joint resolution be introduced, this being an absolute precondition for considering a vote on said joint resolution. Your dismissal, therefore, of section (c) as inapplicable would seem to be incorrect. Rather, it seems to specify the special legislative procedure by which the joint resolution mandated in section (b) should be processed.

A complete list of all joint resolutions and bills introduced in each Congress may be found HERE
It should therefore be trivial to identify any joint resolution(s) which have been introduced in fulfilment of the statutory requirement in 50 USC § 1622.

Thoughtful input and discussion from the legally trained would be most welcome, but I hope we will not be overly distracted from the larger context of these Continuity of Government measures. As much as we may wish it were otherwise, the elephant remains in the room,

Rather than a linkdump — that’s what search engines are good for — I’ll refer you to the Congressional Record: August 2, 2007 (House) [Page H9548] and let Congressman DeFazio, cited above, speak for himself. It’s only a one-minute speech:

“Mr. DeFAZIO. Most Americans would agree that it would be prudent to have a plan to provide for the continuity of government and the rule of law in case of a devastating terrorist attack or natural disaster, a plan to provide for the cooperation, the coordination and continued functioning of all three branches of the government.
The Bush administration tells us they have such a plan. They have introduced a little sketchy public version that is clearly inadequate and doesn’t really tell us what they have in mind, but they said, don’t worry; there’s a detailed classified version. But now they’ve denied the entire Homeland Security Committee of the United States House of Representatives access to their so-called detailed plan to provide for continuity of government. They say, trust us. Trust us, the people who brought us Katrina, to be competent in the face of a disaster? Trust us, the people who brought us warrantless wiretapping and other excesses eroding our civil liberties? Trust us?
Maybe the plan just really doesn’t exist and that’s why they won’t show it to us. I don’t know. Or maybe there’s something there that’s outrageous. The American people need their elected representatives to review this plan for the continuity of government.”

And there, in 2007, the matter seems to have died. I think it’s high time it was re-visited. If I’ve been “sucked in,”I consider myself to be in good company.