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The Rule Of Law, If We Can Keep It

feingold_headshot.jpgThe 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.

It is also incumbant upon the Majority Leader to select the option that makes the most sense tactically. And the best option, in my opinion, is the SJC version of the FISA bill. Or some combination of it with the House RESTORE Act as passed last week. And not just for the telecom immunity issue, either — but because it tackles unconstitutional basket warrants and sunsets the law in a shorter time frame for further needed oversight as we go forward.

The truth is that if the Republicans have to amend telecom imunity back into the bill, they should be required to do so in the bright light of day — standing publicly for obstruction, for big money donors, and for Presidential fiat against the rule of law. If the Republican party is going to advocate such an imperialistic viewpoint of the American legal system — so antithetical to the balance of powers as written into the Constitution by the Founders of this nation — then by all means make them do so in the bright glare of public scrutiny.

Yesterday evening, Sen. Russ Feingold issued a statement urging Sen. Harry Reid to use the Senate Judiciary Committee version of the FISA bill as a starting point:

Statement of U.S. Senator Russ Feingold
In Support of the Senate Majority Leader Taking Up the Senate Judiciary Committee FISA Bill
November 17, 2007

The FISA bill approved by the Judiciary Committee is a significant step toward protecting the privacy of innocent Americans. While further improvements are needed to win my support, the Judiciary bill corrects several of the most important problems with the badly flawed bill that came out of the Intelligence Committee.

It is now up to the Majority Leader to decide what bill to bring to the floor. I hope he decides to make the Judiciary Committee bill the starting point for debate and amendment. Because that bill does not provide amnesty to companies that allegedly cooperated with the administration’s illegal warrantless wiretapping program, supporters of amnesty would need to make their case before the full Senate. Congress needs to stand up to the administration to pass a bill that allows wiretapping of foreign terrorists overseas but protects the communications of law-abiding Americans.

This is exactly correct. Any bill going forward should adhere to the rule of law and to the consitutional principles, the bill of rights, and the precedents of centuries of legal arguments to strengthen civil liberties and individual rights against the substantial police power of the state. History has taught us, from before the Magna Carta until the present, that this requires constant vigilance and a balance of powers, not the acquiesence and obeisance of every other branch of government to an imperial unilateral executive writ petulant.

It is high time we drew a line in front of the Constitution and said “no further lawbreaking will be permitted in the name of liberty.” Now, let’s get to work…here are a few ideas for starters, and I’m sure that you all have many, many more as well. We should stand for liberty, the Constitution and the rule of law. I do. What say you?

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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