Released Memos Justifying Warrantless Wiretapping Point To Limitless Executive Branch Authority
from the in-times-of-war,-we'll-do-whatever-we-want dept
The government's predilection for waiting until late Friday to deliver bad news remains unchanged. Two memos justifying wireless wiretapping were released Friday night, buying it a few days time to prep before dealing with any uncomfortable questions raised by these documents.Both memos [PDF links: first, second] have multiple redactions. The first memo has had entire groups of pages withheld, as well as pages so heavily-redacted they may as well have been deleted. Additional details are scant, leaving readers to read between the redactions in hopes of cobbling together the government's rationale for the warrantless wiretapping of calls originating in the United States.
What does remain is mostly post-9/11 justifications about needing to respond to a new threat in new ways. And that "new way" was apparently to give the President a blank surveillance check to do with what he wished.
The broad outlines of the argument — that the president has inherent constitutional power to monitor Americans’ communications without a warrant in a time of war — were known, but the sweep of the reasoning becomes even clearer in the memos written by then-Assistant Attorney General Jack Goldsmith, who was head of President George W. Bush’s Office of Legal Counsel.The Stellar Wind program, as it was known, was implemented in the wake of the 9/11 attacks, without Congressional approval. The warrantless wiretapping was rationalized into legality years after implementation, and memos like these were the delivery vehicles. The government doesn't trust Americans to understand why it believes a pseudo-war justifies violations of civil liberties. Those parts are blacked out. What we're left with is supposed to be enough.
“We conclude only that when the nation has been thrust into an armed conflict by a foreign attack on the United States and the president determines in his role as commander in chief . . . that it is essential for defense against a further foreign attack to use the [wiretapping] capabilities of the [National Security Agency] within the United States, he has inherent constitutional authority” to order warrantless wiretapping — “an authority that Congress cannot curtail,” Goldsmith wrote in a redacted 108-page memo dated May 6, 2004.
And it's not just Stellar Wind. Other dragnet programs (internet/email/phone metadata) are rationalized as well in these pages. The May 6, 2004 memo by Jack Goldsmith does everything it can to eliminate Fourth Amendment protections, as Marcy Wheeler points out.
It shows that the memo discusses content, discusses telephony metadata, discusses something else, then concludes that content and metadata are both kosher under the Fourth Amendment.The second memo, also written by Goldsmith, does more of the same. This one throws in the then-recent decision by the Supreme Court, finding the detainment of a US citizen (Yaser Esam Hamdi) in Afghanistan was justified because it occurred during a time of war. According to Goldsmith, intercepting communications without a warrant is a "fundamental and accepted" part of waging war. Again, the argument finds in favor of the Executive Branch acting unilaterally to combat terrorism. Anything more detailed or subtly written is buried behind black bars or removed entirely.
But the gist of it is: Smith v. Maryland means intelligence agencies can collect nearly anything they deem metadata without tripping over the Fourth Amendment -- and if these small limits are exceeded, the Executive Branch has the power to override any objections.
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Filed Under: doj, jack goldsmith, justification, surveillance, warrantless wiretapping
Reader Comments
The First Word
“Questions ....
Doesn't a "war" require a declaration of Congress to actually be a war ? And since no war has been declared by Congress, how does the Executive reasonably use the provisions of war to justify unconstitutional activity?Put simply ... Even if you agree with the prima facie argument that in time of war the Executive has the power to ignore the Constitution; Since Congress never declared war and thus no state of war exists, the provisions of war that grant the Executive the power to ignore the Constitution don't apply and any argument that they do is entirely specious. Simply calling something a "war" doesn't make it one.
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The word of a terrorist has no power over us. The government's word is law.
In the name of security we will lose our security. In addition to the terrorist we will have the relentless uncompromising gaze of the government.
The power of the people is born from our freedom, and it is the people who must be the guardians of that power. It is from our freedom that we draw the authority to force our government to abide its boundaries. Through the guise of security we are slowly allowing our government to relinquish that authority, and ultimately, the government will know no boundaries.
Once we allow our freedoms to categorically run dry, we, as a people, will no longer have the authority to stand up to our government.
-tritorch ~2005
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I have a desire to make it to my grave without having ever taken a life, so far so good, but I am afraid my hand will be forced as civil unrest heats up. Once I have to defend myself with violence I am not so sure I would be able to keep a lid on my rage.
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EXCEPT, instead of the 99% doing all the dying, it will be the 1% who get that privilege...
i think i like *that* butcher's bill better...
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And now you know why Obama is not even remotely serious about eliminating the Terrorists. It gives government an excuse to remove our liberty while we suckers stand by, and by not being serious about killing them they get to keep the boogie man around longer to scare the kiddos into obedience!
This is truly classic play brought to you by several millennia worth or human history. Bush was the real terrorist and Obama is sucking his dick all the way down to Texas for inheriting the power Bush put in place!
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Even assuming the impossible, that we got a president willing to declare 'the war is over, all the 'emergency powers' have been revoked, the power is back in the hands of the public', there are far too many vested interests, those that quite enjoy the power and money they currently enjoy, for it to ever occur without the public having to force the matter.
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Those words mean that the war footing will never officially end. Doesn't mean the US has to send boots on the ground to some far away place, it only means that the word war is in continual use. Under that reasoning, the war on drugs is just as good as the war on terrorism to fill the requirement. Or any other proclaimed war, be it protestors or environmental concerns. Just attach the word war and you have the instant solution to on going and continual spying permissions for the government.
The trick is finding a war that never ends.
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Continental Congress time...
I'll let you know in case you're confused.
It's not the government. It's not the corporations. It's not the rich.
It's us, the regular people who hold the power, we just have to remove the rust from our joints, stand up and actually wield it.
The current regime has stood for too long, a revolution is necessary to remind these assholes who they are beholden to.
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Re: Continental Congress time...
Let's see, patent-able, yes; copyright-able, probably (at least their marketing); practical, no.
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Re: Continental Congress time...
I was with you up to that last bit; the government is whatever we let it become, no more, no less. As such, it's not the governers, but the support structure that enables them to govern that needs an overhaul. Those in power will always use whatever means they can to attempt to accomplish the (pretty much impossible) tasks we've given them.
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Re: Re: Continental Congress time...
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Re: Re: Re: Continental Congress time...
Did you not listen when politicians like Bush proposed for the creation of things like the Patriot Act and DHS? Do you still vote for an R or a D?
Our system is not really much of a problem... the problem is that we have allowed the Government to skirt that system with near impunity.
The very first start of the problem with our system is when someone from the government showed up and said this...
We require your children for 8 hours a day to ensure their "education"
I am not against a public education system we all share the responsibility for, but there is only 1 thing that needs to be going on there. Pure learning... no indoctrination... and all we have is indoctrination with very little learning going on as most high school graduates are ignorant as a box of rocks!
Go and look up what a fully informed Juror is... and then you can begin to tell just how screwed up it has become.
When was the last time a court was struck down? This does not happen anymore and has lead to a Judiciary that is out of control. It has by proxy lead to corrupt law enforcement and corruption between courts and businesses to throw your kids in child jail for funds and kickbacks.
You are greatly mistaken... WE ALL LET IT HAPPEN!!! YOU LET IT HAPPEN!
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Re: Re: Re: Re: Continental Congress time...
I learned plenty. Granted, a few years have gone by since then, but the school system did a pretty good job for me.
The problem is, where do you draw the line between "pure" learning and "indoctrination," which simply means learning what a person with an agenda wants you to learn? Replace the word "agenda" with the less emotionally-charged "curriculum" (which teachers have to have to do their jobs effectively) and the line becomes very blurry indeed, especially if the education is to include education about political topics. (And before you say "then don't teach that," do we really want our kids to be ignorant of politics? Isn't that how we got into this mess?)
A court struck down? What does that even mean?
Do you mean when was the last time a court ruling was struck down? Because that happens all the time. Heck, today in the Senate they're holding a historic vote on striking down one of the worst Supreme Court rulings of all time with a proposed Constitutional amendment, because people have been so outraged about it ever since it came out.
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Would this refer to an actual war, with foreign tanks roaming the streets of US cities, or the hypothetical risk of a single terrorist on US soil attack being repeated at an undetermined time in the future?
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Re:
- The United States Department of Justice
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Questions ....
Put simply ... Even if you agree with the prima facie argument that in time of war the Executive has the power to ignore the Constitution; Since Congress never declared war and thus no state of war exists, the provisions of war that grant the Executive the power to ignore the Constitution don't apply and any argument that they do is entirely specious. Simply calling something a "war" doesn't make it one.
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Re: Questions ....
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Re: Questions ....
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"War were declared"
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Re: "War were declared"
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Re: Re: "War were declared"
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Secrecy = The Ring of Gyges
Our administration has taken on the Ring of Gyges and has fallen to the wickedness that is absolute power
And we are letting it.
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"I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States."
So much for the mans ability, so help him God.
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The King is at war with the plebeians
If warrantlessly intercepting communications is fundamental to waging war, and, if the Executive deems itself the authority for that seizure, then the US is become a de facto monarchy in which our King has declared war against us through the unlawfully interception of our communications.
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Re: The King is at war with the plebeians
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The Executive Branch of our government is out of control
These abuses have been widely covered here so I won't list them.
However, each new president pushes us a little farther towards being ruled instead of ruling.
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Re: The Executive Branch of our government is out of control
The reason it now openly appears to be the case, is simply that the fascists in power truly have taken hold of all the strings and there is nothing left that Americans can do, save watch their country dissolve into bankruptcy and chaos as the parasites drain it of its vitality, wealth and prestige and deposit their ill gotten gains in offshore accounts.
They simply don't give a shit anymore because there is not a damn thing you can do to stop them.
Without a true government, the American People have nobody to present their grievances to and thus there is nobody who is willing to address their concerns. You are rendered an endlessly exploitable consumption and tax resource only.
The US government simply no longer represents We The People.
Or to put that another way, the Billionaires in power, do represent We The People, but only because they consider themselves to be We The People, and label the US public as You The Peasants and You the Gold Mine.
It might help to remember that throughout the vast majority of human history, this is precisely the way things have always been. Only a few fleeting moments, historically speaking, have seen nations at peace with happy, healthy citizens enjoying any sort of government representation.
That's because peace does not bring prosperity to the wealthy. Wealth is generated by poverty, war, illness, and crime.
As long as America is ruled by the Wealthy, Poverty, War, Illness and Crime will be the way of the day.
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Re: Re: The Executive Branch of our government is out of control
I'd place it much earlier, actually -- at least as early as the gilded age (late 19th century). I think the reason that it's more obvious now is the internet itself, and the unmediated discussions that enables between lots of people outside of our immediate social circles. I think that's one of the big reasons why we see so many attacks on internet freedom.
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Re: Re: Re: The Executive Branch of our government is out of control
I was referring to the sixties as the point in time when the fascists felt secure enough to begin the process of exploitation of the US in broad daylight, using only their media resources to disseminate the disinformation and cover-up and clandestine operations by government agencies and hired mercenaries to eliminate the more troublesome individuals and groups.
It was at that time that Science was removed from the public and became the property and tool of government and business only. Public Science was reduced to what was already known prior to 1950, minus anything that might enable a social advancement outside of corporate government control.
The dumbing down of public (laborer) education itself began at this time as well.
The internet - the first implementation of a global public hive-mind tool - has, in my opinion, stymied the take-over process far more than anyone might ever know, and may indeed be the one thing that prevents the usual cycle from repeating and bringing back the normal feudal reality that we call history.
It always amazes me how people living in relative freedom under a slightly less-than-dictatorial government, forget that the period in which they live, is but the tiniest of moments when compared to the centuries of terror, poverty, torment and exploitation that makes up all the rest of human history.
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War
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"1984"
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We need a MLK, Jr.
I am reminded of Dr. King's speech about the Vietnam conflict in 1967.
https://archive.org/details/MartinLutherKing-BeyondVietnam-1967
Sadly, this is probably the speech that got him killed.
Is there anyone among us willing to stand and speak? Can we come together and stop this wave of evil before it crests and crashes down upon us? Please, make it so.
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Plan for a North American Conquest
Since the declaration of war was secret, the "someone" who they declared it on could be anyone, even the US public - otherwise known in government circles as The Adversary.
The War Measures Act explains every strange and apparently illegal action the USG has taken since 9/11, and in fact, explains the true purpose of 9/11 ala PNAC.
PNAC calls for a new Pearl Harbor to fool the US public into relinquishing its rights and begging the government to protect it from the new invisible boogie man......
Terrorists! Now new and improved, with Visible Wrangler Black Jean Khakis and Mark's Work Warehouse Denim Ski Masks!
You're all being Pearl Harbored again folks.
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I'd really love this to be a PNAC LIHOP situation.
It would be truly nice if 9/11 happened with inside knowledge here in the US, as that would mean that we were potentially safer from terrorists getting clever than we were, that it took our defenses getting sabotaged from within in order that a suicide airplane attack succeed in the first place.
And yeah, the fact that a "second pearl harbor" was on the wishlist of the Partnership for a New American Century was nicely convincing when the quote was shown out of context. But I eventually read that document. They were talking about upgrading our military forces which would have to be done slowly unless a new event, like Pearl destroyed all of our old units (in that case, WWI warships). 9/11 failed to do that. Granted if it were implemented more successfully and we hadn't caught on, who knows what might have been hit.
Now let's be clear, the PNAC is about as close to a Secret Cabal of Angry Rich Extremists (SCARE) that you can get without them being fictionalized into a James Bond / UNCLE / IMF vehicle.
But the worst-case scenario is that Bin Laden and his CIA-trained Mujahideen got one up on us, and wrecked our year. We had gotten lax. Not out of true neglect: we just aren't attacked that often, and during the Cold War era, we realized that the ease by which Soviet spies snuck into our society was part of the price of an open society. Throughout the Cold War our counterintel had to be more clever than their moles, and sometimes we weren't and we had to clean up some messes. That is part of the price of freedom.
And if we, like the UK, learned the lesson of the Blitz to Keep Calm And Carry On we'd probably not be in this situation where, out of pure fear, we've turned into a national monstrosity that not even Orwell could imagine.
We didn't experience the Blitz first hand, though. So instead the United States completely flipped its lid.
I'd love to imagine that there is some SCARE like entity behind it, wringing their hands and practicing their evil laugh, but it is far more horrifying, and more likely that we've shambled into this mess much the way that Germany kinda-sorta shambled into the Third Reich. The great recession hasn't been helping slow our zombie-like gait towards self-destruction.
And yes, there are conspiracies galore. The NSA and CIA have become their own thing, with the power of surveillance and biographical leverage, they can extend their tendrils into our representatives and pressure them into doing their hidden bidding, and the DoJ really has allowed the police to become its own self-governed street gang. They've all done no less than declare war on our colored, our poor, our huddled masses yearning to breathe free. And corporations literally buy influence from our representatives and own them. We really do torture people in room 101. We've become the very grotesque cyberpunk dystopia that science-fiction writers have been predicting since the 80s.
But this isn't the results of Great Cthulhu's cadre of lizard people working behind the scenes. It's because we stumbled into one thing after another, and this is a natural course of events, much like a pestilence of toads would follow a plague of flies.
I really wish it were otherwise, that a hero could slay a wizard and all this would return back to a merrier America. I really do. But I'm also sure it ain't so.
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Re: I'd really love this to be a PNAC LIHOP situation.
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Re: I'd really love this to be a PNAC LIHOP situation.
Now that I know the whole thing was just a big long string of a few hundred coincidences, happening in an unplanned but perfect sequence and that nobody was behind any of the incredibly handy string of events that led to the US public discarding the Bill of Rights for the Homeland Security Act, and dropping a few billion dollars into the hands of the wealthiest of us, I can just forget all that other stuff and go back to consuming large quantities of beer and pretzels and watching the ball pushers push their balls across the fields on TV again.
Yep, we just stumbled into this mess because we were looking the wrong direction while walking too fast into the future, and all the money that we've been funnelling into the War on Terror Industry has indeed been well spent to prevent us from being corn holed in the wee hours by the millions of invisible super-muslims hiding in the closet just waiting for us to lower our guard.
My favorite part is the AD&D reference where a single hero will slay the dragon and save us all. Apparently he will have to save us all from ourselves though since it was all our own doing and there is no conspiracy to defeat or unravel and no bad guy billionaires to oust from power.
Although in truth the best part is the one where Bin Laden, the CIA asset, "got one up on us", and pulled off 9/11 while all of America's defenses were just coincidentally and momentarily off-line. And obviously all of the stuff that the government did after 9/11 was purely for our own good, like shipping all those molten steel girders off to China before anyone could get a look at them.
Its so good to know that the cause of all of America's problems was simply poor judgement and lack of concentration on the part of the American citizens.
What a relief knowing that the Billionaires in government really are our bestest friends and staunchest protectors!
Thank you Uriel-238. I can now finally put away the NyQuil and sleep the sleep of the stabled sheep, secure in the knowledge that all I have to worry about is another long string of perfectly coordinated coincidences that benefit only the wealthy, taking place by coincidence once again.
I mean, what are the chances of that?
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Things are worse, not better.
The "AD&D reference" is actually a fairy-tale archetype and appears everywhere such as Frodo tossing the One Ring into Mount Doom, or Vader tossing the emperor into the Death Star's reactor core after which everything magically gets better, as if all evil wrought has no deontological inertia and could could be undone with a single act. (It even happens inexplicably in the Lion King!) My point was that it's a part of the big centralized evil narrative, and one of the elements that is reassuring when we imagine it.
I was saying that I looked at all the coincidences as I was a LIHOPer myself, found some of them as a step in a natural process, found others to be dubious and found still more to be genuine, but plausibly coincidences. 9/11 was a thing that happened and it worked better than even Osama Bid Laden imagined. It was something like the the Bikini Atoll test where the hydrogen bomb exceeded expectations and a whole bunch of Pacific island natives had to be quickly relocated or all suffer the imminent fallout.
I was also trying to make the observation that was made regarding the Kennedy Assassination, that part of the interest in an execution-style conspiracy was the fact that there were many secret conspiracies going on. Only now, there's so much secret, we have to guess at what isn't happening. For instance, I personally hope we haven't yet started trafficking our blacks and social undesirables into death camps. But it is entirely plausible that people on top are thinking about that right now. They sure do regard those of us on the bottom as something of a Jewish Problem warranting a solution.
When you refered to the War Measures Act, I assumed you were referring to the War Powers Resolution of 1973. I didn't comment on it because it wasn't relevant to the issue I was addressing. Given that the War on Terror (The Authorization for Use of Military Force Against Terrorists or AUMF) gives the president extreme latitude in how he uses the US armed forces, the WPR, (itself a constitutional logic bomb waiting to detonate) isn't really necessary anymore.
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Re: Things are worse, not better.
My hot water heater blew up a few hours before I wrote that post and I'd just learned that I have to wait two weeks before a new one can be installed. And it just started snowing....
To put it simply, I was way too pissed to post and should have refrained.
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The Secret Illuminati reference was un-necessary however.
The boys running this show may or may not belong to any number of secret rich-dude clubs such as the Skull and Bones, or as it was known in the past, The Jolly Roger Club, but such membership is irrelevant to the fact that rich guys hang out together and discuss, among other things such as best cocaine dealers and sexiest, most expensive rental bimbos, how to make their money, make more money.
Wealth is the strongest addictive drug on the face of the earth and aside from self gratification, leads commonly to an unrelenting desire to increase the amount possessed, if for no other reason than to protect the amount already possessed from those who possess less and those who possess more.
As to the War Measures Act, I'm not at all concerned about what title the legislation carries, as it could indeed be something entirely new, written up specifically for the planned reaction to 9/11, in secret. I'm only trying to point out that such War Laws allow a government to rewrite laws on the fly as needed and to ignore any legislation with impunity and that it can be initiated in secret, and that it does explain all the unusual aspects of what appears often to be the actions of a rogue government.
As to PNAC, it was not written as a confessional. It was written as a game plan and brag piece for those on the inside track. If you were expecting the book to literally reference for your illumination, the exact plans in plain english, I'm afraid you have underestimated the enemy.
Bad guys only confess and tell their victims in plain english how they did it, in hollywood movies, which is of course really great for bad guys in real life.
My point was that the War Laws were enacted secretly, meaning the government was unwilling to let the selected enemy know that war had been declared on him for some reason, and that it was unwilling to tell the American Public that war had been declared at all, for some reason.
That would mean that the possibility exists that the chosen enemy is the American Public, explaining its new classification as the Adversary. A fascist government, or government for profit, is indeed at war with the public it exploits, and because fascism always wears a mask, (NAZI means National Socialist and nothing could be further from Fascist) its always secretly at war with the public.
The WPR might not be necessary, but it would sure be convenient if it could be enacted secretly, offering a legal basis to all of the apparently semi-legal and illegal practices the government has undertaken since 9/11.
And while I understand that almost all Americans have now resigned themselves to believing the official 9/11 story, the corporate desire to do all of this legally would be enough to explain the rationale behind a fascist government pulling off such a false flag operation in the first place.
Once again, thank you for not taking that obvious left jab at my exposed solar plexus.
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Outrageous plotters as a place holder for real ones.
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Re: Outrageous plotters as a place holder for real ones.
In my experience, the wealthy tend to gravitate towards each other naturally and while they do form groups with differing concepts of how best to utilize the power they jointly possess, they are all united in their desire to increase their own wealth exponentially and eternally, by any means at their disposal.
Regardless of their disparate ideologies, they work together in concert when it comes to fleecing the sheep.
In other words, the various Rich-dude clubs are only at odds with each other when they are NOT busy making their money, make more money and as long as they believe there is more than enough to go around, they will - like predators in the wild - inflict only the most minute harm upon one another during those times when they are not busy turning one dollar into three dollars.
Membership includes both the ancient families, such as Royalty, the Usurpers, and the Descendants of Royally commissioned Pirates, and the many newcomers such as the drug cartel and the corporate rich. If you're not up to their standard however, no amount of money will prevent them from removing you from the elite herd before you can cause any damage.
In fact, the very reason for the diversity and variety of these clubs, is to keep the public guessing and to offer skeptics a handy method for ridiculing any who pose dangerous questions.
In truth, they work together, for a common cause, exploiting a common resource.
Modern technology has made this global network vastly more efficient than at any time in the past, as was seen to be the case during the last bank scam where absolutely none of the perps was charged with so much as a traffic ticket.
Their diversity is their disguise.
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Re: I'd really love this to be a PNAC LIHOP situation.
Can I assume that you just dismissed that notion out of hand as being too silly to comment on?
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Re:
The US public.
Probably just a coincidence...
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We've always been at war with...
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Don't Bogart that ISIS, my friend....
...Terror and Drugs."
Sadly, this is not exactly true.
Terror has been utilized many times by the USG in every war its participated in, such as the use of Napalm on civilian populations, and psyops, which is actually just Mil-Speak for Terrorism.
As for drugs, the US actually produced a film called Hemp For Victory at the beginning of WW2, to promote the growing of hemp for the making of cloth products like military uniforms.
And prior to the initiation of the political ploy known as the War on Drugs, most of the common drugs were in every day use throughout the USA.
Opiates such as laudinum (sp?), cannabis, and heroin were sold openly by retailers. The Bayer Company, for example, sold Heroin tablets for the relief of pain such as toothaches, and its pretty obvious where Coco Cola began its climb to fame. Look up the film Coke Anyday (sp?)
In fact, when the boys in office first began the War on Cannabis for the Petroleum Chemical industry, the medical pharmacopia was full of hemp based remedies, and American Doctors were kept in the dark about the prohibition of Cannabis, through the adoption of the Mexican slang word for hemp - marijuana. Doctors had no idea the USG was making cannabis illegal by criminalizing the unknown evil drug marijuana, until it was too late to do anything about it besides protest.
So no, we have not always been at war with Terror and Drugs.
And in my opinion, we are still not at war with either, since after decades of "War", the use of both has increased.
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