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Monday, January 02, 2006

Trust: You have to Earn It, Every Day, Part II

The reason I went back to the Patriot Act debate video (warning: video) is that the panelists on all sides of this issue kept consistently using the FISA Court as an example of a referee in this process, as a safeguard expressly established by Congress against the potential for overreach and misuse of an incredible amount of power wielded by the government, which can bring to bear almost unlimited resources for whatever surveillance purpose it deems necessary.

As we are all well aware at this point, this Administration just sidestepped the FISA Court as an inconvenience -- which undermines the entire argument for fairness of process under Patriot Act provisions. There must be trust for this system to work -- and that trust must be earned every single day.

The Bush Administration has squandered that trust, at almost every opportunity -- and needlessly so, considering the enormous outpouring of goodwill and unity shown by all sides of the political spectrum after 9/11. We now know that this Administration took that goodwill and spat upon it within months in this NSA mess:
By disregarding Article II, Sec. 3 of the Constitution requiring that the President "take Care that the Laws be faithfully executed" of the United States -- he did not do so, by acting in direct violation of the FISA laws, and repeatedly breaking the law.

By disregarding the 4th Amendment to the United States Constitution in acting without warrant against citizens of this nation -- I believe Ex Parte Milligan and its successor cases are still good law, and require that the President of the United States uphold all of the Bill of Rights, not just those provisions that he finds to his liking at the moment.

By disregarding the mandated oversight of the judicial branch of government, by cutting out the FISA Court entirely -- and breaking the FISA law in the process. Repeatedly.

By jeopardizing every criminal case which now springs forth from this poisonous tree -- every defendant who has been identified by unlawful surveillance methods, or those who had an investigation initiated through some connection to the unlawful surveillance, now have grounds to argue that they should be released, or at least retried, because the process was tainted.
And those are just a few of the issues raised in the single area of the NSA surveillance disclosures. This doesn't even begin to touch upon the trust squandered in the area of failing to finish the job appropriately in Afghanistan; failing to find and capture Osama Bin Laden and all al Qa'ida deputies responsible for planning and funding the attacks on 9/11; failing to disclose dissenting views on WMD and other intelligence in the march to war in Iraq, both to members of Congress and, more importantly, to the public; failing to adequately plan for the post-war occupation in Iraq; failing to be honest with the Congress and the public about the potential costs of the war; failing to adequately plan for disasters in our own nation, demonstrated by our utter failure to manage a response to Hurricane Katrina with a several days heads-up from the National Weather Service (terrorists sure as hell won't be RSVP-ing the next time they strike, now will they?)...well, I could go on and on.

This Administration is a failure in terms of earning the people's trust. Over and over they have lied, they have manipulated, they have tried to tap dance their way around obfuscations. And that is exactly why I disagree with Pat Fitzgerald on this.

You cannot have a legal system, let alone a government, that functions when the chief executive is running around acting like Barney Fife. A half-cocked, half-considered policy is not good enough -- especially when you are looking at the long-term implications. And the enablers in the Administration that have been propping up this half-baked, short-sighted idiocy are just as culpable as Yoo and Gonzales and everyone else who worked to find a way to end-run the law in the first place.

For the legal system to have any standing with the public, there must be some confidence in its integrity. As if the OJ trial weren't bad enough, we now have the President of the United States willing to play fast and loose with the law when it suits him because he can't be bothered to follow the rules. We have a Preznit who would be King, and a poor one at that, and he cannot be trusted to do anything except what the King sees as good for himself. At least that's true for King George, now, isn't it?

And how do we know that, in the future, we will get someone better? What if the next Administration is even worse in terms of disrespect for the laws and our precedents and history?

If the government were full of elected public servants who saw their jobs as serving the public first -- instead of officials serving their own greedy desire for more power and for servicing their political allies -- then another layer of additional oversight by some third party referree to ensure individual liberty would not be needed. But the government is run by human beings, with all the attendant flaws and petty grievances that humans bring with them, something the Founders took into account when they established this nation and its system of checks and balances.

The current government is out of balance. The executive has been given far too much power over the last five years, while the Republican Congress has abdicated its responsibility and become a rubber stamp for the Administration, and they have misused that power.

The President has breached all of our trust -- by his own statements he has admitted to breaking the law repeatedly -- a law which need not have been broken because he already had plenty of leeway written into the FISA law to obtain a warrant after already wiretapping someone for 72 hours. Without trust in the system, there can be no proper functioning of the criminal process -- and without that trust, whatever safeguards already exist within the Patriot Act and other anti-terrorism provisions must be further strengthened.

This President cannot be trusted to properly follow the law. As such, someone else must rein him in -- be it the Courts or Congress, one of the other branches must step up and do its job. If not, then liberty in this nation shall cease to be.

Unlike Pat Fitzgerald, I no longer have the faith that the system will balance itself without some proper direction and without some substantial pressure to do what is right. For members of Congress and those sitting on the judicial bench, consider this my nudge.

We have a President, not a King -- no one should be allowed to act above the law. Period. Especially not a man who was elected to serve the people. Such a man should be held to a higher standard, because public service ought to be a noble calling -- the Constitution must be upheld in our own nation, or we have already lost whatever battles we claim to be fighting in the name of freedom and liberty elsewhere.

For every step we take away from the notions of liberty on which this nation was founded, Osama Bin Laden laughs a little louder. By turning away from liberty, we are becoming that which we fight against, something that we managed to avoid even at the height of the Cold War. That is cowardly and wrong, and America is a better nation than that.

On behalf of all the Pat Fitzgerald's and James Comey's and all the rest of the public service professionals who are simply trying to do their job by following the law and the rules, I am beyond angry. What this Administration has done to the American public and the Constitution and our notions of liberty is bad enough, but to add this additional burden to an already difficult job for law enforcement and national security professionals -- when the law need never have been broken in the first place for lawful surveillance to have occurred under FISA -- is shameful, wrong and incompetent. And the President and his Administration should be held accountable for it.

It is worth noting that public servants stood up to the Administration about this policy: DoJ employees refused to rubber stamp this because it was outside the law; NSA employees refused to participate in the program; and there have been reports of fierce arguments within the Administration hierarchy as to the constitutionality of all of this. This did not occur without some staunch opposition -- yet the Preznit chose to move forward regardless. His choice, his consequences.

Whatever action is taken by Congress or the Courts in the coming months, I ask only that they put the nation first. They must earn our trust every day -- for all those members of Congress still in their districts on holiday, start earning the nation's trust right now. Step up and do your damn job. There is a reason that Barney Fife wasn't the Sheriff. What's your excuse for letting the Preznit continue being Barney Fife?