Update: This may raise questions whether GAO or Congress are serous about raising the substantive questions during nominations, raised below:

Focusing US Government Legal Compliance-Modernization Efforts

GAO at the request of Congress developed a list of questions the Congress should ask of incoming political appointees. The report does not specifically mention important areas, including:

Sample TPM-Interest Issues Not Expressly Mentioned in GAO Suggested Questions

• US Attorney/DOJ Staff oversight, auditing, monitoring, sanctions
  
• DOJ OPR relationship with WH-DOJ legal counsel during investigations
• DOJ OLC, signing statements
• FISA, Geneva compliance
• Oath of office enforcement
• Timely enforcement plans when prosecutions and impeachment are thwarted
  
• Illegal Executive exercise of legislative and/or judicial power (Signing statements, secret trials, ignoring FISA Court, suspension of habeas without invasion or rebellion)
  

We believe the failure of GAO to expressly mention specific examples does a disservice to the public and Congress. Congress has shown since 2001 that it needs to be reminded.

Given these gaps, it appears GAO would ask TPM to write the questions; and forward those to the Congress.  This comment focuses on the DOJ questions on pages 59 through 61 of 155. This information may help focus Members of Congress and their staff on key DOJ issues.

What Follows:

• Part I reviews sample gaps in the GAO questions; and
• Part II outlines sample questions more directly raising issues of interest to TPM.

We recommend the Congress re-direct GAO to quickly provide an update to this report, and demonstrate the GAO has been paying attention to the specific news events since 2001. The questions are too general; the answers could prompt cursory management plans. We were hoping for something specific to answer this core problem:

Key issue: Outside elections, what will ensure there is a credible legal compliance program within Congress to timely (a) enforce the Constitution; and (b) ensure the Executive branch fully meets its legal obligations?

Part I: Gaps in GAO Questions

The report complements, in part, what is on the GAO Transition website.

• If you have specific suggestions or comments for the GAO transition website, you can contact GAO here.
• If you want another perspective of these gaps, try this as food for thought.

However, do not be fooled by the length of the report. There are some glaring gaps.  Of interest to TPM is the unfortunate failure of GAO to adequately target (one) core issue at the foundation of the TPM concern: The US Attorney Firings.

Mother Jones: "Problems like the politicization of the Justice Department are not mentioned."

We're concerned that the GAO points of contact have no expressly mentioned in the report specific problems like the US Attorney firings, FISA violations, Geneva breaches, or the President's thwarting of DOJ OPR and DOJ IG.

Here GAO discusses legal reports, but fails to expressly organize the GAO reports related to the legal issues: US Attorney, FISA, Geneva; and DOJ OPR investigations of Attorney standards of conduct.

• The legal issues with FISA, and Geneva are not explicitly mentioned in the GAO report; nor are the problems with Attorney standards of conduct, DOJ OPR, the signing statements, and the White House-DOJ legal counsel interactions, nor with the Attorney Standards of Conduct.
• There are also no specific back-up plans to ensure there remain viable options to enforce the law when both the Congress and Executive refuse to either impeach or prosecute for violations of Genva and FISA.

GAO recommendations are welcome. GAO should have a view on what solutions might be required to ensure these abuses do not re-cur. One problem is an Exective's view of the law, combined with an apparent agreement of the Congress and DOJ to not enforce the law. It will be interesting to hear more GAO testimony to Congress on these oversight issues.

Some of these might be covered in future reports. These reports need a visible link on the DOJ page. A more useful approach, other than what GAO's Justice POC provides, is the GAO format for Defense, including relevant GAO reports. Here, there is an obvious "Key Reports" at the top of the Financial management page.

One problem appears to be GAO's embracing an Administration-Congressional view of the programs, without looking the broader, systemic problems across the programs: Legal compliance, attorney oversight, and legal counsel monitoring.

This section appears to require more detail. GAO appears to require some additional public guidance. For example, GAO and Congress should jointly monitor programs to ensure DOJ's legal counsel are adequately overseen, monitored, and disciplined for breaches of treaty obligations and FISA requirements.

We call your attention to the method GAO used to designation GAO employees as points of contact in the report. We encourage GAO to comment on whether GAO staff providing suggestions questions have the requisite experience and depth of professional auditing experience with the relevant DOJ interest areas. They may be experienced, but the concern is that their names are not specifically associated some key TPM-interest areas in the Justice area: FISA, Geneva, DOJ OLC, DOJ OPR, and the US Attorney firings.

• There are over 16,000 references including "OLC" and a GAO email. Larence has only one (1) mention of "DOJ OLC" within a single-published GAO report. This appears to be insufficient.
• It's not as though the GAO POC doesn't  know what the US Attorneys office is.  Although her number has changed from (202) 512-8777 to (202) 512-6510, Larence reported on the fusion centers connection with the US Attorney's office.
• You can do a google search of her email [ larencee@gao.gov ] showing other GAO documents. She has experience; however, her email does not connect with any documents related to "DOJ OPR" or "singing statement".  "Guantanamo" is not mentioned in the GAO report.

This report shows she knows that Congress has legal oversight of intelligence activities, and is aware of DOJ OLC. However, there are no specific questions related to the systemic problems inadequately challenged by both Congressional Democrats and Republicans:

Rare GAO Director Reference to OLC

34 of 77: "There is a 1988 DOJ Office of Legal Counsel (OLC) opinion that offers DOJ's views on our authority to review intelligence activities in the context of foreign policy. In the 1988 opinion, OLC asserted that by enacting the current intelligence oversight framework, codified at 50 U.S.C. § 413, Congress intended the intelligence committees to maintain exclusive oversight with respect to intelligence activities, foreclosing reviews by GAO."

Similarly giving the same unresponsive Members of question more vague questions to ask does not seem adequate. The US government including GAO and Congress appears to have missed the point since 2001 on the Constitution. For example, we argue

• The issue is not narrowly "privacy" but the mechanisms to enforce the Constitution (109 of 155 Ensuring That Agencies Protect Privacy)
• 5 USC 3331 oath of office is not expressly referenced in the report; nor is the "oath of office," for the President or US Government officials, as a means to enforce the Constitution.

PART II Suggested Questions:

We need a framework for GAO and Congress to put the Constitution before all US government employees, agents, contractors, elected officials, and legal counsel. No exceptions, otherwise the GAO and Congress have let the Constitutution become something other than the Supreme law. That is not permissible.

The key issue: "What will happen to ensure the Constitutional abuses and neglect since 2001 never happen again?"

Public Legal Education: 

The American legal community appears to have largely fallen down on the job. Except for a few attorneys who dared risk their legal careers, America's legal counsel have showed they could not be trusted to timely enforce Geneva or FISA. The public needs independent tools to challenge the US government and legal community when they fail to meet their legal obligations; and are not enforcing the Supreme Law.

• What is the Department's plan to educate the public on 42 USC 1983 as a tool for private citizens to act as an attorney general; and independently conduct investigations to present evidence to a grand jury related to government corruption, malfeasance, violations of the Constitution?
• What legally-recognized tools should the public have at their disposal (as is the case of 42 USC 1983) to act as an attorney general; and take action on behalf of the public to defend the Constitution against domestic enemies in the US government?
• What methods will the Executive staff use to ensure the public serving on grand juries is aware of their legal power to expansively review all illegal conduct, and return any indictments against any elected US government official, legislator, or officer of the court?
• When the US government attempts to suppress information related to war crimes, FISA violations, POW abuse, and other violations of the Constitution, what options should the public have -- outside the US government -- have lawfully recognized as legal tools to compel compliance and enforcement of the Supreme Law and all Treaty obligations?

Governance Modernization:

Where there is a problem, solutions can be discussed. This US government appears to have been largely lost, and the public has not been (as it should) well supported in independently challenging the unresponsive US government.

• What's the plan of the American government to ensure the public is fully supported in efforts to modernize, as needed, the US Constitution based on the principles of reform and problem solving contained in the Magna Carta and Declaration of Independence?
• How will this core body of private citizens, legal information, and other advice be memorialized so that future generations are reminded of lawful options they have when the US government refuses to fully meet its legal obligations despite the threat of arrest, prosecution, and loss of public office?
• Which standing committees should be created in Congress to ensure issues of impeachment are always on the table, and constantly a credible threat to ensure Executive respect for the Constitution?
• What is the plan when Members of Congress, despite legislative power to make laws, refuse to fully assert their power, and permit an Executive to exercise legislative power through signing statements?

Grand Jury Modernization:

Sadly, since 2001, the US Federal Government has shown disdain for the Constitution and oath of office.  The oath of office appears to have been meaningless. Indeed, it should not (but does) require a credible threat of local level grand jury indictment and prosecutions of federal elected officials in the executive, legislative, and judicial branches to awaken the US government to its legal obligations under the US Constitution.

• How can the grand jury process be modernized to ensure the Constitution is adequately preserved, protected, and defended?
• What improved guidlines and jury instructions will be provided to grand juries so they understand their legal duties to defend the Constitution, and, if needed, bring charges agaisnt prosecutors, judges, and elected officials to enforce the Consttitution, Geneva, or FISA?
• How will Grand Juries be adequately prepared to ensure they have sufficient information to bring, as needed, charges of malfeasance against prosecutors who refuse to prosecute Members of Congress, executive branch officials, contractors, or judicial officers for their failure to enforce the laws of war, Supreme law?
• What guidance will grand juries have to ensure they can timely assess whether elected officials have or have not fully met their 5 USC 3331 legal obligations?
• What methods do grand juries need to independently gather information from witnesses who have been threatened with retaliation, or identify useful pathfinders who may not know about the grand jury?

Tainted Investigations Into Prosecutorial Misconduct:

We've seen multiple examples of  prosecutors being asked to conduct "independent" review of  peer US Attorney offices because of internal conflicts. however, upon close examination, the  "non tainted"  US Attorneys office  does engage in similar conduct being investigated. These issues related to improper use of FBI agents, witness tampering, and improper violations of court orders sealing evidence from other witnesses.

• What is the plan for the EOUSA and DOJ leadership to ensure there remains an independent, non-tainted group of US Attorneys and prosecutors who are ready to conduct investigations of prosecutor misconduct or improper prosecutorial abuses?
• What is the incoming DOJ plan to more visibily enforce the prosecutor standards of professional conduct using non-tainted prosecutors and investigators?
• How does the incoming stasff envision modernizing the relationship between the state attorney disciplinary boards and DOJ OPR; what federal-level oversight is required to ensure assigned-DOJ staff are not narrowly following only state-level legal standards, but are held to standards of conduct enforceable through DOJ OPR in the District?

Legal Compliance:

The United States President allegedly waged illegal war, relying on sighing statements; and ignored FISA and Geneva.

• What methods will you use to ensure that future legal memoranda to the President adequately couch the legal implications of ignoring treaty obligations and privacy rights?
• What can you point to in your experience demonstrating you have a speedy plan to review the problems of the US Attorney firings; and implement a coherent strategy to ensure this does not happen again.
• What do you envision you require by way of legislative updates to ensure these lessons are institutionalized?
• What Constitutional changes-rewrites are required to ensure DOJ AG decisions to not enforce the law face meaningful consequences?

War Fighter Legal Experts:

The JAGs were sidelined during the deliberative process on Geneva, Iraq, and POW treatment.

• What methods will US government officials use to ensure that Geneva treaty obligations are given due defence; and that the JAGs are given speedy access to members of Congress and the public when these legal obligations are not being met in the planning process?

Inadequate Resource, Legal Preparations:

There was inadequate planning to comply with the Geneva obligations. This appears because the march to war in Iraq was based on a timeline, not whether the US government was ready to fully meet all legal and resource requirements for lawful combat operations.

• What options should commanders have to ensure that they are only deployed for lawful warfare; and that when they learn of illegal warfare, they are given timely support from Congress and the public to remedy the legal situation?

DOJ Legal Counsel Reviews: DOJ legal counsel must be reminded they work for the public and the Constitution. they cannot be rewarded for remaining loyal to illegal Executive Activity.

• What is your plan to ensure the DOJ OPR and DOJ IG are given adequate support to conduct internal investigations to review DOJ Staff counsel conduct, and forward findings to state disciplinary boards for disbarment?

DOJ OPR Independence: In the wake of the NSA domestic spying, the media reported the President derailed various DOJ OPR investigations into FISA violations and other activity.

• What methods will you use to ensure the DOJ OPR remains independent, even with a President bent on derailing those investigations; what methods will be institutionalized so that this does not happen again?
• Is a Constitutional Amendment-rewrite the only optoin; or do we need to divide executive power into a new branch, outside DOJ control?

Remedies To Thwarted Enforcement:

• Should the prosecution arm of the government remain under the President; or should another branch of government have exclusive power to conduct investigations of US and State government officials?
• When there are legal requirements for either an impeachment or prosecution, but the US government refuses to do either, what steps will DOJ leadership take to ensure that local prosecutors are given the information to enforce the Constitution against Federal Officials?

TPM Discussion Questions:

Here are some questions and issues you may wish to discuss with your friends, on your blogs, or with your local officials. They key question is: What will be done to ensure the abuses since 2001 do not happen again? Government can be modernized to solve this problem of inaction and malfeasance.

The solution must be one that is lawful, and reminds elected officials they are accountable to the Constitution and We the People through the Supreme law. Private agreements to suppress evidence of US government activity cannot be tolerated; nor can the public accept the notion that elected officials can agree in secret to violate the Supreme Law; or be bound by that agreement.

Legitimate Government Based On Written Law; The idea of the oath of office and laws is to provide written reminders of what leaders are supposed to do. 

• What signals should the public use to determine the US government has departed from written law; and that the US Government must peacefully be dissolved by drafting a new Constitution which lawfully replaces the Constitution the government (illegally) no longer enforces or abides by?

Oath of Office: Something got in the way of the Executive and Legislature from enforcing the laws of war and FISA 2001-2008. Elections didn't ensure the leadership had a renewed love of the law. The public voted for change in 2006 and 2008.

• Why does it take this long to ensure the leadershship is being given the right questions, not to mention implementing the right answers.
• What's the view of the Kennedy School of Government on these issues; when Senior Executive Service (SES) personnel are trained on these issues, what options should they have when their peers refuse to fully assert their oath to defend the Constitution from domestic enemies?

Mobilization:

It appears as if the United States did not timely mobilize after the events of Sept 2001. Regardless the excuses, we still have not seen a mobilization of the nation's resources. Management, legal counsel, and auditors were not given adequate support. This needs to end.

• What happened after 2001, and how does this compare with the US response after Pearl Harbor?
• Why does it appear legal compliance in 2001-8 is worse; why are the personnel in the key positions of government still there despite bungling on the battlefield and court room?
• Did the US government miss the window of opportunity to mobilize the American legal community to get ready for improved legal compliance?

Legal Counsel Oversight, Discipline:

Nuremberg reminds us legal counsel can be prosecuted for refusing to enforce the law.

• How long will it really take the ABA to modernize legal training standards for accredited universities; and for the state bars to improve Continuing legal Education to ensure the legal compliance problems 2001-8 are adequately remedied?

Alternative Enforcement Options: We've seen high crimes, but no prosecutions or impeachment.

• When impeachment is off the table, what should the legal community have done by way of independent District Attorney or State AG efforts to enforce the law;
• What federal mechanisms are required to modernize these programs to ensure this does not happen again; or if it does, there are timely adjustments?

Untimely Legal Compliance:

• Why did it take seven (7) years to get around to conducting at trial for people accused of criminal activity?
• What will be done to ensure habeas and other Constitutional protections are timely preserved; and the violations -- even during wartime -- are timely challenged through the legislative, legal, and electoral processes?