Monday, December 19, 2005

From KGB to NSA, the story remains the same

I wanted to wait awhile before writing a post about this subject, because I wanted to say something that mattered, truly, to many people. This subject has been blogged ad nauseum for days now, and it's hard to sort it all out. But, I cannot sit back and say nothing about one of the greatest violations of the Constitution in recent history, let alone the nasty precedent that this president has set.

I'm talking, of course, about the spying on Americans by Americans.

The New York Times reported on Friday that in 2002, President George W. Bush signed an Executive Order giving permission for the National Security Agency, an agency previously tasked to spying on other nations' communications, to spy on Americans who might maybe perhaps possibly be terrorists or terrorist aiders. No evidence, no review by a judge, no warrant, no NOTHING. The Fourth Amendment clearly protects us from unreasonable and/or warrantless searches and seizures, a measure clearly violated by the Executive Order.

There is a Foreign Intelligence Surveillance Act (FISA) court, a panel of judges who can give immediate hearings in national security emergencies and has, as history shows, usually amenable to government requests in these cases. It's not great that they agree so often with the executive branch, but at least we've followed the law and judicial review has taken place.

Now, in the years following the signing of this Executive Order, the FISA court has rewritten more warrant requests and denied more warrant requests than at any other time in its existence. If the executive is having more trouble proving its cases, is frequently being rejected and/or revised, why should we trust the executive in this case? Why should we believe that our "national security" is truly risked by the revealing of what is unconstitutional, illegal spying?

It is said that executive orders, until ruled otherwise, are the law, and that the law is whatever the President thinks it is until such matter is decided in the judicial system. The flaw in this is that what the President did in this case is not just ruling on the law, it put him in the position of deciding what the Constitution means, and that is a power that said Constitution clearly enumerates to the judicial branch. The Supreme Court is the ultimate arbiter of what the Constitution means, and this President chose to ignore the very document that he swore an oath to God to "preserve, protect and defend."

The rule of law holds until it is broken and no one cares or does anything about it. I don't like using this example, because it makes everyone think tinfoil hat, but let us not forget that Hitler and the Nazis passed many laws in the Reichstag that were unconstitutional in the Weimar Republic, and because everyone's fear prevented them from doing anything, we had to fight a war against the Third Reich and a race was nearly exterminated from the face of the Earth. Hitler was able to solidify power because his violations of law were not challenged.

This is really a watershed moment in American history. We last faced such a crossroads in 1972-1974, during the Watergate scandal, which showed a large degree of lawbreaking on the part of Nixon administration officials. The secret wiretapping of reporters and others without warrants, the break-ins at the offices of Daniel Ellsberg's psychiatrist and of the DNC, the constant use of "national security" as a cover-all reason for why the American people should allow an administration the right to do what they wished. The American people put their foot down and the President resigned facing certain impeachment and conviction.

Today, we have a President who has used an intelligence agency to spy on Americans guilty of no crime, a President who at the very least allowed people in his administration to lie about a threat that has been proven to be nonexistent, a President who has placed politics above all, a President who in response to an attack on our nation pushed through Congress a law that undermines our civil liberties before even retaliating against our attackers, a President who has broken several international and bilateral treaties that we are signatories to, a President who condones torture, elsewise he wouldn't have fought so hard to prevent its total banishment by Congress, a President who has mortgaged our future to other nations, some of whom wish us ill, and a President who has little respect for the very fiber of our nation, the Constitution.

Tell me, how is this man preserving, protecting, and defending the Constitution?

This order needs to be challenged in federal court, and ruled on by the Supreme Court. I am willing to bet the ACLU is looking for someone affected by this, and they well should. If the Court strikes down this order as a gross constitutional violation, again, as they well should, then I believe Congress would be fully within fair boundaries to begin an impeachment violation, because this was clearly an obvious attempt to subvert the law and the Constitution. There is no way the President and his lawyers could argue with a straight face that they didn't know surveillance and searches on American citizens without a warrant constituted a violation of the Constitution.

If a President is allowed to do this, then there would be no restrictions on what could be done with this power. Spying on political opponents, using data collected as blackmail to get his agenda through, is just one way this power could abused. Nixon bugged his political opponents despite already having major political leverage over them. It's happened before, it could happen again, and the threat to democracy is too real to ignore. At the very least, the VERY least, a congressional censure is in order. This is where we take a stand, or we can kiss off democracy as we knew it for good, and that isn't paranoia, it is true this time. Those who would sacrifice liberty for a little safety deserve neither.


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