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Living Up to Our Legacy of Liberty

File:Bill of Rights Pg1of1 AC.jpgAl Gore has given a scorcher of a speech today on the FISA end-run and the need to re-commit this nation to the cause of liberty. You can watch the whole of the speech here, but one segment of it spoke to the heart of the importance of checks and balances and shining sunshine into the dark places of the current Administration (text of speech):

A president who breaks the law is a threat to the very structure of our government. Our Founding Fathers were adamant that they had established a government of laws and not men. Indeed, they recognized that the structure of government they had enshrined in our Constitution – our system of checks and balances – was designed with a central purpose of ensuring that it would govern through the rule of law. As John Adams said: "The executive shall never exercise the legislative and judicial powers, or either of them, to the end that it may be a government of laws and not of men."

An executive who arrogates to himself the power to ignore the legitimate legislative directives of the Congress or to act free of the check of the judiciary becomes the central threat that the Founders sought to nullify in the Constitution – an all-powerful executive too reminiscent of the King from whom they had broken free. In the words of James Madison, "the accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny."

Thomas Paine, whose pamphlet, "On Common Sense" ignited the American Revolution, succinctly described America’s alternative. Here, he said, we intended to make certain that "the law is king."

Vigilant adherence to the rule of law strengthens our democracy and strengthens America. It ensures that those who govern us operate within our constitutional structure, which means that our democratic institutions play their indispensable role in shaping policy and determining the direction of our nation. It means that the people of this nation ultimately determine its course and not executive officials operating in secret without constraint.

The rule of law makes us stronger by ensuring that decisions will be tested, studied, reviewed and examined through the processes of government that are designed to improve policy. And the knowledge that they will be reviewed prevents over-reaching and checks the accretion of power.

This is why the Alito nomination is important to every American. A unitary executive that is all-powerful during a time of ongoing and never-ending undeclared official wartime has no check, no balance, especially given a Congress which has abdicated its responsibilities of any meaningful oversight. In this context, an independent judiciary becomes more important as a balancing mechanism — and a judiciary which has been purposely packed with rubber-stamping ideologues cannot provide an adequate balance.

Why is this important? Ask Mohammed Yousry, a translator hired by the Untied States government to work on the Blind Sheik case, who was surveilled and wiretapped via a FISA warrant, for doing his job and translating communications that he was asked to translate by defense counsel. The US Attorneys working on the case said in their closing argument that Yousrey had no apparent militant ideology.

"Yousry is not a practicing Muslim. He is not a fundamentalist," prosecutor Anthony Barkow acknowledged in his closing arguments to a jury in federal district court in Manhattan earlier this year. "Mohammed Yousry is not someone who supports or believes in the use of violence."

And yet a jury convicted him in the immediate aftermath of 9/11, with one juror writing to the court that this conviction was discussed among those in the jury room as a means to send a message to Muslims that they wouldn’t get away with violence against Americans, no matter whether or not this single man was guilty.

This is not the America I know and love. Nor should this be allowed to stand, if the facts are indeed as agregious as they are reported to be. And any judge presiding over such a trial, any US Attorney who prosecuted it and any defense counsel representing this man, who has been informed of jury misconduct has a duty — a solemn duty to justice and to liberty — to look into this further and do what is right.

We are a nation of laws. We should start acting like it.

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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