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Restoring Our Values

Rep. Rush Holt discusses the rule of law, checks and balances, the need for oversight and the RESTORE Act…

The best disinfectant for governmental wrongdoing is a healthy dose of sunshine.  And this is, seemingly, the very thing that the Bush Administration is fighting tooth and nail.  Via Marty at Balkinization:

…the increasingly common notion that the government can insist that no one be permitted to publicly disclose what they know about how the government itself investigates crimes and terrorism, and how it treats those suspected of wrongdoing.

The fight over the FISA law is but another example of this attempt to prevent sunlight from shining fully on lawbreaking and wrongful conduct. As I said on Saturday:

The Bush Administration has not been bargaining in good faith on the FISA bill, they are asking Congress to rubber stamp actions that were illegal and in contravention of the FISA laws as they existed at the time those actions were taken. And they are asking Congress to do so by trusting an Administration which has failed to adequately comply with discovery requests, has had contempt for Congressional subpoenas, has either been dismissive and contemptuous or utterly stonewalled Congressional attempts at oversight of national security matters based on a flimsy theory of unilateral executive fiat. (Patriot Act, take two…anyone?)

The word you are looking for is “NO.”

As I said yesterday, there are a number of options available to the Majority Leader. The key is to pick the most legally sound option in terms of a negotiating point. It is time that a firm line is drawn on the side of the republic — if we are to keep it, we must act as though that matters to all of us.

Rush Holt’s work in the House on this issue has been fantastic, and he has a piece on HuffPo worth a read:

Specifically, I worked to include language to:

  • Ensure that the government must have an individualized, particularized court-approved warrant based on probable cause in order to read or listen to the communications of an American citizen.
  • Require the Court to review and approve not only the procedures and guidelines required under this Act, but also the application of those guidelines.
  • Require the Bush administration to “fully inform” Congress on all surveillance programs conducted since 9/11.
  • Increase the number of Foreign Intelligence Surveillance Court (FISC) judges from 11 to 15, provide additional personnel to both the FISC and government agencies responsible for making and processing FISA applications, create an electronic filing, sharing, and document management system for handling this highly classified data, and mandate training for all government personnel involved in the FISA process.
  • Clarify that the Foreign Intelligence Surveillance Act (FISA) is the sole statutory basis for domestic surveillance.

The RESTORE Act now makes clear that it is the courts — and not an executive branch political appointee — who decide whether or not the communications of an American can be seized and searched, and that such seizures and searches must be done pursuant to a court order. Every Member of Congress can tell each of our constituents, “You have the individual protection of the court.”

Restoring the role of the courts is important not only to protect the individual rights contained in the Fourth Amendment to the Constitution. This bill will, by applying checks and balances, keep our intelligence community strong and improve intelligence collection and analysis. It has been demonstrated that when officials must establish before a court that they have reason to intercept communications — that is, that they know what they are doing — we get better intelligence than through indiscriminate collection and fishing expeditions.

Rep. Holt, Sens. Feingold, Leahy and Dodd, and a host of others who have been working diligently on this issue deserve our praise. It is important that our actions match our stated values. Why, you may ask? I’ll let Scott Horton at Harper’s suss this out:

…As my friend Mark Danner writes, if you assembled a team of Madison Avenue’s most brilliant thinkers in a room and asked them to concoct a recruitment plan for al Qaeda and its allies, we’d never come anywhere close to the one that the Bush Administration delivered up to them with the torture program. It’s the major reason why today, six years after the start of the war on terror, al Qaeda is back up to the strength it had on 9/11, and the Taliban has also been able to regroup and recharge, destabilizing a friendly government in Afghanistan.

I believe that torture is a moral issue and must be resolved on that basis. But even if we were to examine it on a purely utilitarian basis–No one can look at this cost-benefit analysis and think it is even a remotely close call. The results of the torture policy have been catastrophic and have dramatically undermined our national security….

Torture, domestic spying without a warrant in contravention of the 4th Amendment, black sites, Gitmo by the sea and no meaningful access to counsel…it goes on and on.  It is well past time we restored our actions to match our publicly stated values. We can start with upholding the rule of law.

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Christy Hardin Smith

Christy Hardin Smith

Christy is a "recovering" attorney, who earned her undergraduate degree at Smith College, in American Studies and Government, concentrating in American Foreign Policy. She then went on to graduate studies at the University of Pennsylvania in the field of political science and international relations/security studies, before attending law school at the College of Law at West Virginia University, where she was Associate Editor of the Law Review. Christy was a partner in her own firm for several years, where she practiced in a number of areas including criminal defense, child abuse and neglect representation, domestic law, civil litigation, and she was an attorney for a small municipality, before switching hats to become a state prosecutor. Christy has extensive trial experience, and has worked for years both in and out of the court system to improve the lives of at risk children.

Email: reddhedd AT firedoglake DOT com

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