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Wednesday, December 14, 2005

Patriot Act or Patriot

The US Constitution is an agreement – The Citizens agree to give up their power in exchange for the Government agreement to protect their rights.

A government that fails to preserve, protect, and defend those rights – and that Document – no longer has a legal foundation for power.

There are a several errors floating around about the Patriot Act.

First is the false notion that the national security letters are appropriate. What this argument misses is – the absent/cursory/non-existent judicial review. A credible system of constitutional checks would include judicial review. The current Patriot Act fails this test. Appropriate oversight would include judicial review of the government conduct before the intrusions; not many years after the falsely accused have surfaced in distant lands to report of abuse at the hands of masked Americans – out of uniform, in violation the laws of war. Constitutional protections – however clearly promulgated -- are irrelevant when the law enforcement uses time delays to suppress evidence of wrong doing. American leaders cannot credibly argue it is fighting in principle for freedoms abroad it does not respect in practice at home.

Second is the incorrect notion that Lincoln did the same. This argument fails. Lincoln’s action was found unconstitutional. We see nothing before us to suggest either the writ of habeas corpus has been suspended, nor that the constitution is irrelevant. Whether Congress or the courts choose to engage or remain aloof – the American constitution still exists. And evidence for 42 USC 1983 claims apply when -- through neglect, malfeasance, inaction – contrary to their oaths of office – leaders fail to assert the rule of law on their own officers. One cannot credibly assert they are for the rule of law or liberty when their actions demonstrate they view the laws as trifles – they cannot claim their promises and commitments to the law are credible – they lose the right to have access to sensitive information which requires them to promise to assent to sanctions under the rule of law.

Third is the false notion that we must deny ourselves certain rights to advance the rights of others in Iraq. Our constitution is about American citizens. If we cannot put into practice the system and exercise the freedoms at home, it makes no sense to export this system abroad – nor expect others to passively embrace what we, by our actions, show cannot – or will not let – work. A system of checks and balances – however inconvenient for the government to adhere – is something the judiciary will impose sanctions on the government if it fails to adhere to these standards of conduct. Evidence – when it is the fruit of unlawful police conduct – is suppressed as a sanction on law enforcement to ensure they follow the law – not refer to the law as a hurdle to circumvent. This government wants to fight for the idea of freedom around the globe, while ignoring the rule of law and disrespect freedom at home.

Fourth it is incorrect, misleading, and irrelevant to suggest that the number of national security letters is below 30,000. The real issue is whether a single national security letter is related to the information collected. Given the 200 million flight records still retained – and subsequently unlawfully used by commercial airliners – and one million Nevada hotel records retained based on a single erroneous, and torture-induced false claim, we fail to see that the number of national security letters issued is related to the larger number of citizen’s records seized. We have the right to be free from unreasonable searches – this government conducts unreasonably broad searches without sufficient and needed judicial restraints.

Fifth is the flawed argument that the government can be trusted. Self-evidently, the system of checks and balances is based on the opposite assumption – that power must be separated and checked – with judicial review.

Sixth is the incorrect notion that the population does not deserve to know what is going on with the results of the investigations. This is based on the false premise that the public – despite the protection for public trials – cannot have access to the courts and fruits of investigations. If we are truly in this war together – then there is no better way to rally the nation, and identify what they need to beware of – than if the world was given clear information on what is going on, what progress is being made.

Seventh is the incorrect notion that the secrecy and intrusions on private rights – defacto destruction of liberties – are justified because the war has been thrust upon us. This argument fails. War was not thrust on anyone – it was an active, conscious choice – one agreed to with ambiguous end, success, and parameters. One chooses war – as has the United States – when it fails to heed the warnings to the FAA and in 1998. A war of choice has turned into a war of lawlessness at home and abroad.

Eighth is the false premise that the war requires us to do what must be done. Yet, American CIA agents have engaged in unlawful war -- engaging in war crimes without wearing uniforms with an identifiable insignia. There is no credible basis to say the actions – outside the courts review – are lawful. The Patriot Act permits these unlawful combatants to engage in abuses and suppress evidence of their wrong doing. American citizens, because they could be lawful targets by others as retributions for the CIA’s original violations of the law of war – need the information to know how their safety is at risk by protecting those who engage in lawlessness.

Ninth is the flawed argument that combat operations in Iraq – however disconnected they are with 9-11 – will make us safer and are valid actions against terrorism. This argument fails. The premise of this argument assumes incorrectly that the US took lawful action; and that the basis for war in Iraq was lawful – both unsupportable assertions. Even the administration refuses to assert they claimed the threat from Iraq was imminent, as required by the laws of war. One cannot violate the Constitution at home on the premise that intrusion is made up by success on the battlefield – when battlefield successes are illusory, unlawful, and counter productive.

Tenth is the flawed argument that law enforcement requires quick methods to access data. We’ve seen what the “quick moving” law enforcement does – shoots and kills people without regard to civil liberties, reality, or the credible threats. Judicial oversight is not simply warranted and legally required – it is needed to oversee the defective FBI management and cursory investigations into perjury, testilying, and misconduct. Lawful conduct must be under the umbrella of the rule of law, not premised on assumptions that skirt the law and lawful checks on law enforcement mischief. We cannot blindly defer to law enforcement – the fruit of torture is the evidence they proffer to justify additional abuse. Without judicial oversight, there are no sanctions against law enforcement officers who make sweeping claims based on speculation, innuendo, and false confessions.

Eleven is the false comparison between Japan and Iraq. Japan was allowed to keep their leader – and the Japanese rallied to a central democratic nation. Iraq has no single leader which can focus the people. America’s focus is to change the subject from the rule of law at home and find excuses abroad.

Twelfth is the false notion that the American government needs to do what must be done to keep us free, protecting our nation. The facts prove the opposite. The secrecy has one objective – to hide evince of war crimes, incompetence, and malfeasance – the very conduct the Constitution was designed to prevent with a shield, not condone with silence.

Thirteenth is the incorrect notion that “everyone else” must come up with a better plan in Iraq – and lacking something specific, we must continue with what we have. This is based on the false premise that “to be against what is going on, one is for terrorism.” Rather, a simple alternative solution and plan is to have a war crimes trial and, as the laws of war permit – lawfully put to death – after conviction before a magistrate – those Americans which have engaged in war crimes. The foundation for accountability and this plan is clear – the American Constitution. It does not require a “new plan” – but a simple reliance on the clearly promulgated statutes and protections in the Amendments. The law is there to be respected at all times, not when it is convenient. Self-evidently, this government conveniently ignored incoming information during 9-11, and refuses to fully investigate and hold accountable the Executive. Rather, it defers responsibility to the people in the intelligence community who correctly told – and were ignored – the leadership what was going on. The American Senate Intelligence Committee has failed in its mandate – more interested in protecting the leadership from accountability than in finding the real solutions to the real problems. Given their lack of interest in the Constitution, it is no wonder their search has been fruitless.

Fourteenth is the flawed argument that the Patriot Act must be narrowly construed – unrelated to Iraq, WMD, the Constitution. This argument fails. The issues – as evidenced by repeated White House assertions – are related. Self-evidently, the disconnect is between the White House conduct – malfeasance -- and accountability.

Fifteenth is the false notion the nation is at war, and all must be done to prevail. It is asserted – without judicial review – that the conduct is lawful. The evidence before us indicates the opposite – the conduct, however effective it may be, is unlawful, thereby exposing the American civilian population to lawful counter attacks by the newly emboldened enemy. A nation that refuses to rely on domestic systems for independent review loses sovereignty and may be compelled to assent to external judicial systems. If that fails, the only option is for the UN to act. If the aggressor nation – the nation whose conduct violates international norms – fails to assent to the rule of law, the world’s nations may resort to lawful military force, thereby exposing the civilian population to lawful retaliation on the alternative forum – the battlefield.

Sixteenth, is the false notion that the law will be imposed on all to keep us free. In practice, we find the leadership has used the law as a sword to the nation’s citizenry – thereby putting the leadership above the law. The leadership is more interested in discussing issues with the enemy than its own citizenry – no longer can the leadership credibly distinguish itself from the enemy it compels us to rally against – both rely on lawlessness, violence, and fail to respect human rights. One is simply more powerful in its use of force, not in its prudent force of reason.

Seventeenth is the incorrect notion that the war is just. Yet, the war is based on rewritten history and ignored laws. The United Sates, not the Iraqis, were the ones intend on ignoring the rule of law. We learn the US leadership – not the Iraqis – made the inspections fail. This leadership launched – and still argues for – a war based on false facts. The world refused to assent to this false war – leaving the American leadership with few friends – and no allies on the Fitzgerald Grand Jury.

Eighteenth is the incredible argument that this war will last for generations. That means the leadership plans to take generations to justify ignoring the laws at home to wage unlawful war abroad. If the enemy is clear – then let the judicial branch review the basis for the treatment and intrusions – it is not an lawful order to compel the citizenry to assent to conduct which, self-evidently, is without regard to the Constitution and laws of war. A leadership which wages war on its citizenry without regard to the laws of the land – arguably subjects itself to lawful retaliation using the same means – without regard to any expectation that the citizenry meet any standard the leadership refuses to follow. Free citizens cannot be expected to assent to agreements – A Constitution which confers powers upon the leadership in exchange for respect of citizen rights – when the leadership is not willing to recognize the document. By failing to respect citizen rights as promised, the citizenry is no longer bound to continue to provide or recognize the consideration at the heart of the Constitution – the leader’s power. A leader who retains power, but fails to preserve the rights they are empowered to protect, have no legal foundation to retain power.

Nineteenth is the absurd expectation that a free citizenry – which recognizes the leadership refuses to abide by the terms of the agreement – will forever assent to violations of their rights. We have the option of the courts – yet this leadership refuses to timely recognize the judiciary as a central player in the Patriot Act. In return, it would be prudent for the citizen to timely deny the leadership the valuable consideration it asserts it has – its position of leadership – in exchange for it failing to respect citizens rights – as clearly promulgated in the American Constitution.

Twentieth is the absurd expectation that a free citizenry – arguably denied the right to have the judicial branch check the reckless executive – should continue to assent to the intrusions and violations of their rights. Again, this leadership argues it has the right to move without court oversight. The laws of war teach us that when one party to a dispute violates the laws of war – the other party may violate the same. Thus, a free citizenry could reasonably argue it too can move without regard to the court oversight. Which forum does the executive propose to take the dispute if it denies the citizens access to the judicial branch? Self-evidently, the executive mandates that the dispute – the leaders’ expectation that the citizens assent to lawlessness and intrusions, a violation of the Constitution, while still compelling the citizenry to recognize the leadership’s power – be taken to the battlefield.