Tuesday, February 13, 2018

Duty, honor, country? Government employee misbehavior on the rise

Over the last couple of years we have seen the Internal Revenue Service target conservative organizations seeking 501(c)(3) status, and heap time delays and over-the-top demands for information on them to delay or deny granting that status. We have seen the Department of Education sneakily change Common Core from guidelines to policy.

These things make one wonder whether those working in the American government understand the U.S. Constitution and the Bill of Rights, and that they are obligated to obey them and honorably serve the American people.

The answer seems to be, “yes,” as long as it suits their purposes.

The current furor over getting permission for the government to spy on Donald Trump’s presidential campaign appears to be a continuation of these questionable, and possibly illegal, activities.

A CNN host has come forth to defend this activity, citing “very real fears” of “something very suspicious” in the campaign. And he justified the surveillance activities with the question, “don’t you want to know” if something illegal was going on?

Brian Stelter, host of CNN’s “Reliable Sources,” told Newsmax CEO Christopher Ruddy in an interview earlier this month that there was a willingness to collude with the Russians that needed to be investigated. He apparently believes that this perceived willingness justified taking away the Fourth Amendment protections against “unreasonable searches and seizures” from some 100 people who were associated with Donald Trump in some way or another, according to the House Intelligence Committee.

Since taking away one citizen’s privacy is a serious matter, and taking privacy from a hundred is substantially more so, there must be a procedure the government must first go through to protect citizens’ rights. And there is. The Foreign Intelligence Surveillance Act (FISA) requires a court ruling to permit such invasions of privacy.

How does this procedure work? Well, here is Connecticut Democrat Sen. Richard Blumenthal’s description, via Politico: “On any given day in Washington, 11 judges — all designated by Chief Justice John Roberts, without congressional advice or consent — convene to hear surveillance applications from the United States government. Behind closed doors and without checks or scrutiny, they balance the threats of espionage and terrorism with Fourth Amendment protections from unreasonable searches and seizures.”

And what is the record of performance by the FISA court in protecting Fourth Amendment rights? Blumenthal notes, “the odds are stacked strongly in favor of the federal government. Last year alone, the Foreign Intelligence Surveillance Court … heard nearly 1,800 such applications from the U.S. government; not a single request was denied. In its entire 33-year history, the FISA court has rejected just 11 of 34,000 requests.”

For the non-mathematicians out there, the approval rate of applications to the FISA court is astounding. Only .00032 percent of the applications are not approved.

But then again, these are one-sided proceedings, with only government accusations and evidence allowed. It’s just like hearings before a grand jury, about which it has been famously said that a prosecutor can get a grand jury to indict a ham sandwich. It’s like when your favorite sports team wins a game against … no one.

Obviously, it is critically important that the government be allowed to pursue legitimate potential espionage and terrorism threats, but it is equally important to protect the Fourth Amendment rights of American citizens.

It may be the case that the government has always acted appropriately. Or, maybe it has fudged its case before the court successfully, on occasion. But the accusation of collusion by the Trump campaign and the resulting court ruling clearly raises serious questions about this process.

The FBI’s “evidence” provided to the FISA court in support of permission to spy on 100 associates of Donald Trump contains the now-infamous and fraudulent Trump dossier. It is a document compiled by former British spy Christopher Steele and political opposition research group Fusion GPS on behalf of, and partially funded by, the Democratic National Committee and the Hillary Clinton campaign through a third party.

The FISA warrant application failed to disclose to the court exactly who had financed the dossier – a Trump political opponent – information that should have been included in the application.

Defenders of the action against these 100 individuals claim that the dossier was not a primary piece of evidence in the application. Okay, fine. Then, given its scurrilous and fraudulent background, and the at-best questionable behavior of some of the FBI’s upper management, why was it included in the application at all?

Wouldn’t it be helpful – in recognition of the popular concept of the day: transparency – to have access to the FISA application, so that the American people can see what the FISA court saw?

“Created in the wake of Watergate-era revelations about executive-branch spying on domestic dissidents, the FISA court today operates in the shadows without public oversight,” and “the executive branch almost never loses,” Blumenthal wrote.

He believes this broken system must be repaired, and is working on legislation to fix it. It “deprives the entire system of trust and credibility in the eyes of the American people,” he wrote.

Whether Surveillancegate can be reversed and confidence in the system restored only time will tell. But we must try.

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