"Trust Us"

One reason the Bush administration has fared so poorly over the past several years is its obsessive fear of public accountability and separation of powers. From its secret prisons to its classified torture memos, from its closed deportation proceedings to its incommunicado detention of José Padilla, from its clandestine NSA spying to its persistent efforts to deny the Guantánamo Bay detainees access to the writ of habeas corpus, the Bush administration has entered one long plea of "trust us." President Bush is, after all, “The Decider.”

As the Framers of the Constitution well understood, however, such an approach to governance is a recipe for disaster. The Framers believed in both openness and checks-and-balances. They recognized the dangers of an overzealous executive, operating in secret, unchecked by the courts, the Congress, the press, and the public. The recently-released Justice Department audit of the FBI's use of PATRIOT Act authority is the latest example of the consequences of the Bush administration’s “trust us” theory of governance.

Enacted only weeks after 9/11, the PATRIOT Act, among other things, empowered the FBI in the course of terrorism investigations to issue “national security letters” (NSLs), through which the FBI could order businesses, universities, telephone companies, and other organizations to turn over email, telephone, credit card, banking, educational, library, medical and other personal and financial information to the FBI.

Civil libertarians objected to giving the government this authority because it would empower the FBI to invade legitimate private interests of innocent individuals without any judicial supervision. It would, in short, circumvent the fundamental principle of separation of powers. The Bush administration, however, insisted on the autonomy of the executive branch. It promised to institute internal FBI safeguards to ensure that this authority was not abused. Judicial oversight, it explained, was a bother and, in any event, unnecessary.

The Justice Department’s audit of the NSL program reveals, once again, the profound difference between government by executive decree and government by checks and balances. From 2003 to 2005, the FBI issued more than 140,000 NSLs. Although the FBI is required by law to report its use of this authority to Congress, the audit revealed that over the past three years the FBI underreported the number of national security letters it had issued by more than 20%.

Even more disturbing, over the past three years the FBI reported a total of only 26 instances in which it had violated the guidelines for the issuance and use of national security letters. But when the Justice Department independently audited the FBI's records, it found violations - not reported by the FBI - in roughly 7% of the national security letters it examined. Thus, from 2003 to 2005 the FBI had issued approximately 10,000 unlawful NSLs. In effect, then, the FBI had self-reported fewer than 1% of its own violations.

These violations run the gamut from improper requests for NSLs, to unauthorized collection of data, to unlawful authorization of NSLs. Some of these errors were made by the FBI, others were made by the third-party recipients of the NSLs. Most of these errors were no doubt unintentional. They were due to inadequate guidelines, confusion about the governing standards and reporting requirements, and even typographical errors that resulted in information being obtained about the wrong people.

For the government to gather private information about individuals for use in terrorism investigations is a serious business. The Bush administration’s failure to institute appropriate guidelines, standards, procedures, and safeguards is precisely why public accountability, separation of powers and checks and balances are important. What this blunder of executive branch arrogance proves once again is clear – “trust us” is not a viable principle of a well-functioning democracy.

Comments

[golddog]

Professor Stone, once again, nails the issue.

When designing procedures that the government can use to limit an individual's liberty, we should always design them imagining the worst possible abuses because history has shown that without accountability this is what always occurs.

The framers of the Constitution knew this well. Madison wrote, "[i]f men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself." There is a reason that so many of Madison's quotes are now cliches: they ring true.

The presumption should be the government will abuse its powers without proper oversight. Why do we continue to give the executive branch the benefit of the doubt? Schlesinger may be dead, but the Imperial Presidency lives on.

[Joan A. Conway]

Imperialism belongs to the money class! So it will never go away. Never.

Imperial lessons are a means of separating us from others, and places an emphasis on insight of the abusive conduct or behavior under the existance of our laws, or the lack of laws. It is also a way of establishing the need for more laws to address the futility of the laws we already have, like the reason Tort Laws were formed.

I for one have witnessed imperialism in banking, education, and welfare, and I know a deceased historial, Schlesinger, does not have to be recalled to revisit the concept of imperialism. If you have a capitalistic society, you have imperialism. Period.

[Erasmussimo]

Indeed, the very concept of "trusting the government" is antithetical to the notions upon which the Constitution was built. The system is designed to insure that we need not trust anybody. Most of the complicated details of the Constitution are built to preserve the desideratum of insuring that nobody can "game the system" by secretly pulling levers. In this sense, every case of a government official, up to and especially the President, asking that the public "trust us" is a good time to grab your copy of the Constitution and see what they're trying to break down.

[Joan A. Conway]

Reconsidering the definitive influence of J. A. Hobson's Imperialism, on Lenin, Hilferding, Kautsky, Rosa Luxemburg, Bakunin, during his lifetime from 1858 to 1940, as the greatest source of the Taproot of Imperialism:

It is the growth of powers of production, such like the globe has never seen until the United States of America exceeds its growth of consumption, more goods can be produced that can be sold at a profit, and that more capital exists than can find renumerative investment.

The international capitalists, and what appears to be European dominance in certain industries over U.S. businesses, can use government in order to secure for their particular use some distant undeveloped country by annexation and protection.

"Most of the complicated details of the Constitution are built to preserve the desideratum of insuring that nobody can "game the system" by secretly pulling levers."

Erasmussimo says on March 14, 2007, does not accord with "the scramble for markets which are responsible for openly avowed repudiation of treaty obligations of which the USA had not scrupled to defend." Hobson said.

"Germany and Russia professed adoption of material gain of their country as the sole criterion of public conduct other nations were not slow to accept the standard." Hobson said.

In our case the President's Supreme Court mobs us!

Republic appointed Supreme Court Justices controls the coordinate authorities of this government, from 1996 to 2006, for over a decade, and including the 2000 Presidential Election! I say.

The argument is that the co-ordinate braches are not the checks on each other and the constitution lacks its usual authority, because of the political force tied to the scramble for markets under a capitalistic system. I say.

"The poeple cease to be their own rulers and assign their government into the hand for ... the eminent tribunal." Thomas Jefferson said on 9/11/1804, in his Letter to Abigail Adams.

Abraham Lincoln said in 1861, that "It will be overruled and never become a precedent, concerning no single tribunal."

Thus, while it may be of some atrovistic sentiment to say that the public interest needs to be restored, the Supreme Court Majority of Justices may argue that does it perform a "disruptive inquiry?"

I see it as a quid pro quo for the votes that the Religious Right generated for G. W. Bush, and their past support of an alcoholic son of a former President, George Bush; its pay back!

The serious business is the taproot of imperialism - investment opportunities and lower races to subjugate.

Under procedural jurisdiction and imagining the worst individual's liberty, the option is of course the abuse of discretion.

Why else would a government(s) abuse its powers without proper oversight but-for material gain and extension of itself in foreign lands?

This is similar to the Nixon V. Administrator of General Services, 433 U.S. 425 (1977) case: To take custody of Nixon's materials, to screen then to return, etc. President Recording and materials Preservation Act of 1974, looks a lot like the Patriot Act of 2001.

Nixon challenged the Act for violations of Separation of Prowers.

Did it have a disruptive inquiry?

"No!"

See the qualified presumptive privilege: Beyer, Executive Privilege - A Constitutional Myth (1974) Fair Administration of Criminal Justice.

[Seamus O'Bròg]

And if Ronald Reagan didn’t convince you that having a mediocre but very sincere actor as a puppet president isn’t a bad idea, then vote for Fred Dalton Thompson for president. He’s a better actor than Reagan ever was. And Thompson makes Reagan look like a Democrat. But if you're going to elect another actor as president, first find out who his producers and directors are. What's the plot?
http://thechewedend.blogspot.com/2007/03/nazis-mein-gott-part-two.html

[Eyes]

Excellent post.

[Joan A. Conway]

Thomason senatorial voice desires an audience, don't you think.

But you're on the money, here.

Would Mitch Romney get as far as he has gotten if he wasn't born into politics and not quite so handsome?

Mitch has many fans, but does he add up to diversity, or business as usual.

[Curious Reader]

Professors,

Could you address the US attorneys firing scandal? I am curious to read your collective take on the issues.

Thanks,