Human Rights

Congress, Step Up and Start Defending the Constitution

The Democrats' capitulation on FISA is a triumph of Congressional self-importance over the guardianship of our Constitutional rights.
Imagine yourself as the parent of a willful, destructive child who lives to break things. Every rattle -- split. Every cup -- cracked. Every toy -- destroyed. Every stuffed animal -- ripped to shreds. All of this behavior is punctuated by continued whining and crying when objects presented to him somehow don't work any more.

Why then, on God's green earth, would any parent give the child a priceless vase, knowing it will be reduced to shards in a few moment's time, even if those few moments are a respite between tantrums?

I wouldn't. You wouldn't. But the Congress of the United States will. The passage by the House last week, and the expected passage by the Senate this week, of the latest assault on our Constitution is nothing more than trying to take the easy way out by rewarding bad behavior. It's a triumph of Congressional self-importance over the guardianship of our rights.

The Democratic "leadership" wanted a bill President Bush would sign. That was the bottom line. It wouldn't matter if the Constitution got trashed. It wouldn't matter if the government was given too much authority. These "legislators" had to legislate, or else they would be made to look bad by a president whose policies are now opposed by about 80 percent of the American people. Heaven forbid there's no new legislation and the government has to operate with the authority already in place. How would that look? To some people, just fine. On the other hand, while the House "leadership" basks in its legislative glories, the Republicans go preening to the press on how they snookered the other side. They are only partially right. It's not fooling someone if that person knows what's going on is stupid yet participates willingly. That's what happened here.

Of course it's not only the "leadership" who were behind this travesty. The whining, self-important "Blue Dogs," Democrats from "conservative" districts also pushed for it so they can flaunt their credentials as tough on terrorists and strong on defense. Come on, little Blue Puppies. It's time to "man up" and to "woman up" on this. Try defending the Constitution for a change. Quit whimpering and hiding and defend freedom and the document to which you swore an oath to protect and to defend.

It was evident to anyone looking at the bill that the legislation took the idea of a warrant out of the hands of the most indulgent court in the land -- the secret Foreign Intelligence Surveillance Act (FISA) court that grants every request for a wiretap. It's simply a matter that the authorities can't be bothered with the niceties any more. Never mind that existing law allows for wiretapping now, with a warrant soon after.

No, the Executive Branch got something more. Rather than have a court review whether a wiretap is necessary, this new bill only allows a court to decide whether it had been correctly requested. The wiretap is presumed to be legal by the people ordering the wiretap. There's a bit of circular logic there. The emergency wiretapping can only take place under "exigent circumstances," which, in theory, are to happen only rarely. As Rep. James Langevin (D-RI) put it during the House debate: "This legislation will only work if everyone involved follows the rules and remains within the confines of the law."

Langevin raises the relevant point here. Who, exactly, are we rewarding with this new authority, and what have they done to deserve it? Let's go down the ever-increasing and depressing list. It's not like anyone can forget what was going on at DoJ. We are reminded every day by some new disclosure that the Department became more politicized than at any time in its history. We can start with hiring lawyers based on ideology. We can continue with firing U.S. Attorneys because they decline to file bogus voter-fraud cases against Democratic candidates. How about dropping or settling big law suits against special interests? And then, the big kahuna, spying on American citizens without warrants or authorization, knowing that it was likely illegal but doing it anyway. This was the program that even John Ashcroft refused to approve from his hospital bed. That's the shorthand. Eric Lichtblau's excellent book, Bush's Law: The Remaking of American Justice, lays it all out. News stories every day now tell the stories of the Kyles, Monicas, Bradleys and the rest of the kiddies remaking the Justice Department in their own image. There might be grown-ups in charge now, but the doctrine remains the same.

How do you expect an administration so riddled with ideology and incompetence to follow the rules? On what basis would you even think that they would do so, having gone to such great lengths to break the rules and ignore the rules in the first place?

And, having placed its institutional faith in the Executive Branch to carry out these precepts, what did Congress get in return? First, self-congratulations all around. They are proud of the "compromise" they carefully crafted. A number of speakers, including Speaker Nancy Pelosi (D-CA), said this wasn't a bill she would like, they defended it anyway and yes, she voted for it. No one doubts that compromise is often a necessity in complex legislation. There are trade-offs between amounts of tax breaks for one industry versus another. There are trade-off of one highway project for another, or a compromise on how one industry should be regulated. It's much harder to defend a "compromise" that throws away a basic Constitutional value on the basis that a bill needed to be passed.

But legislative craftsmanship wasn't the only point that Congress "won" in this bill. There will be increased oversight and reports to the Congress. Huzzahs abound!! The administration that produced an attorney general as a witness whose reticence was more like an organized-crime witness of the 1950s hearings than a public servant will have increased oversight. Congress can hold more hearings. They can write more letters. Those have been great an effective tools up until now, right? Quite the tradeoff -- bloviating versus the saving the Constitution. I can see how that might be appealing to the majority of members of Congress who think well of themselves. They have done such a terrific job so far.

We shouldn't forget that the large telecom companies, the ones which want to control the Internet, are given their get-out-of-jail-free card with this bill. All of the civil suits against them for wiretapping without authorization will be dismissed. However, they will "come out of this with a taint," Pelosi reminded us. Somehow that seems inadequate.

The Blue Dogs in the House and the "conservative" Democrats in the Senate will vote for the bill, and three will be blind quotes in the paper justifying those actions as necessary because they come from "conservative" areas and would be in danger of losing their seats. For the record, Bob Barr, the former Congressman and current Libertarian candidate for president opposes the FISA bill. He's got to be more conservative than most of the groups and constituents of whom you and our "leadership" are deathly afraid. Stop acting like little kids afraid of the big bullies. This is the Constitution we're talking about. It isn't child's play.
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