The Meaning of the Law

The Thinker by Rodin

Back in May, I asked the question “Why do we have governments?” As I said back then, the answer was not rocket science. After disclosures this week that President Bush authorized the National Security Agency to conduct warrantless electronic eavesdropping on American citizens, not just once, but apparently thirty times since 9/11, I have to wonder if President Bush missed some fundamental lectures on government too. Could Mr. Bush accurately answer the question, “Why do we have laws?” I doubt it.

Maybe he would answer something like, “Laws are rules that people must follow, except presidents, particularly when it comes to the nation’s national security.” The disclosure this week by The New York Times of these illegal wiretaps and Bush’s subsequent bizarre rationalization suggests that it will take a new administration to remove this terminal case of cognitive dissonance from the White House.

His “logic” seems to go something like this. Despite this FISA statute that explicitly prohibits eavesdropping on American citizen’s telephone calls without approval from the special secret FISA court, FISA was countermanded by the joint resolution passed by Congress on September 14th, 2001. It gave me carte blanc powers for anything I think might even be remotely related to 9/11.

Of course, the resolution says nothing about authorizing wiretapping against American citizens without a warrant. You would think it would be clear from the title of the resolution, which is “Authorization for the Use of Military Force”. Moreover, it authorized the use of our armed forces “against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons.”

Thus far, Jose Padilla is the only United States citizen charged in the United States with helping the Al Qaeda terrorists. (He was finally charged years after he was first detained.) He has had a tough time getting a trial for his alleged crime, because Bush declared him an enemy combatant. Padilla has been languishing in a military brig for three and a half years, stripped of the rights we assume all Americans have, including the right to a fair trial. Even so, this joint resolution sounds like it does authorize the president to send the military against any American who might have colluded with the enemy. Unless these few errant citizens are engaged against our forces in combat, you would think it would be much simpler to send the FBI and charge them with treason.

In this case, we are talking about the National Security Agency. The last I checked the NSA was not part of the military. In addition, it cannot exert any military force. The guards at the front desk at the NSA may have a pair of revolvers, but it is unlikely that we will see brigades of NSA eavesdroppers ever going into battle. Of course, the NSA likely does fine intelligence work, but they simply are not a military force. If you polled members of the 107th Congress, I bet you would be hard pressed to find any member who thought that in passing Joint Resolution 23 they were invalidating part of the FISA law.

Even Bush seems to acknowledge his actions broke the FISA law.

QUESTION: Why did you skip the basic safeguards of asking courts for permission for the intercepts?

BUSH: First of all, right after September the 11th, I knew we were fighting a different kind of war. And so I asked people in my administration to analyze how best for me and our government to do the job people expect us to do, which is to detect and prevent a possible attack. That’s what the American people want.

There is only one wee problem to his logic. It is this minor thing called the Oath of Office. Bush solemnly swore to:

“I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.”

Of course, the U.S. Constitution sets a framework for laws that Congress may pass. To protect the constitution a president must necessarily enforce the laws passed by Congress. In fact, that is the whole point of being president: to faithfully execute our laws. (Commander in Chief is a separate duty which applies only to leading our armed forces.) The president does not make any laws. However, whether he agrees with them or not it is his solemn duty to do his best to uphold our laws. All of them.

However, Bush apparently thinks he can ignore laws when he does not agree with them. That this is wholly inconsistent with his oath of office does not bother him in the least.

Nevertheless, it should bother you. It should bother you a lot. The law may be smart or it may be stupid. Clearly, Bush thought the FISA law was stupid and dated after 9/11. Instead of doing what he should have done, which is to petition the Congress to change the statute, he flagrantly and repeatedly violated the law. Why did he do this? Most likely, because he knew that Congress would not change the law. So he invented the world’s most dubious excuse to circumvent it. It is as if he dropped his pants and mooned both Congress and the American people. You can almost hear him taunting, “I know what must be done and you are too stupid to do it. You are a bunch of morons. So I’ll do it anyhow.”

Consulting with a few members of Congress about his decision does not change the law. It does not make it okay. Even if it did, the information was classified. No one who knew about it could disclose their knowledge of it without breaking the law. That is why some of the few in Congress who did know what was going on, people like Senator Jay Rockefeller and Congresswoman Nancy Pelosi, chose to say nothing. If they had, they would have broken the law. They could have gone to prison. They respected the law, even though in this case they were clearly troubled by Bush’s apparently illegal acts.

Clearly, Bush had no qualms though. Therefore, the American public need to send him a clear message. No one person is above the law, and that includes the President of the United States. We need to bring this out in hearings. Then, if our Congress had any backbone, the House would impeach him and the Senate would remove him from office for flagrantly and repeatedly violating the law of the land.

This is not a partisan issue. This is an issue of law. The law is meaningless unless it is enforced. The citizens of the former Soviet Union had rights. It included:

In accordance with the interests of the people and in order to strengthen and develop the socialist system, citizens of the USSR are guaranteed freedom of speech, of the press, and of assembly, meetings, street processions and demonstrations.

Did they have these rights? Sure, but only if they toed the line of the Communist Party. The reality was that the Soviet Union did not support these rights. Consequently, they became meaningless. By circumventing the FISA law, Bush used the law like toilet paper, and essentially canceled a right to privacy for hundreds of millions of Americans. In addition, he cheapened the rights and liberties of all American citizens.

In reality, he is destroying our way of life. We fought against the British because we wanted a government that represented our interests. Our constitution and laws define our liberties and rules of conduct. They apply equally to everyone.

Yet Bush thinks he is an exception. In reality, Bush is nothing but a bully. Bush is trying to win through intimidation. However, bullies have only as much power as we let them get away with. It is time for citizens to demand that our Congress hold Bush accountable for his law breaking. Let me be clear: your freedom and the freedom of your children depend on it. Otherwise, our future is going to start looking a lot like the Soviet Union’s.

Anger on Herndon response to day labor problem is misplaced

The Thinker by Rodin

My little town of Herndon, Virginia has been in the news lately. Okay, technically I do not live in Herndon. I am a couple miles outside its corporate limits. However, most of my mail is addressed to a Herndon, Virginia post office. I do not pay taxes to the Town of Herndon. Nevertheless, like it or not I get its newspaper delivered in my mailbox. In addition, since it is only a few miles away I do a fair amount of shopping inside the town. Since I have lived here 12 years, I feel something of a Herndonite.

I was sitting in our hotel room in Columbus, Ohio a few weeks ago and turned on CNN. I was surprised to find that the day laborer controversy in the town had escalated to national news. The Town of Herndon has a problem. Day laborers congregate around a 7-Eleven store at the corner of Alabama Drive and Elden Street in Herndon. Employers drive by every day and hire some of them. Most of the day laborers are Hispanic. Likely many of them are in this country illegally. You would think then that the Bureau of Immigration and Custom Enforcement (formally INS) might target the site. However, you would be wrong. ICE apparently has bigger fish to fry, or simply does not give a damn.

So every day for more than a decade 60-70 day laborers, the majority of whom are likely here illegally, congregate around the 7-Eleven and the nearby McDonalds and the Amoco gas station across the street hoping for day work. Many of them get work and others are disappointed. Some who get work are subsequently angry when the employers who hire them do not pay them agreed upon wages, or refused to pay them at all. Knowing that many are illegal, some employers figure they can get away with it.

For day laborers are considered independent contractors, not employees. They agree to do a day’s work for a given amount of money, and federal wage and hour laws do not necessarily apply. Just as I do not have to worry whether the firm that cuts my grass hires illegal workers, these employers do not have to burden themselves with checking for green cards. After all, at the end of the day these workers are history. In general, there is no paperwork to fill out. Day laborers jump into the employer’s truck or van and are off to a site for the day. Generally, they are returned to the same place in the evening. Wages are paid in cash at the end of the day. For workers here illegally, it is a great system. Moreover, if you are an employer who needs a few guys to pull weeds or to dig a trench you can get them locally for a song and at your convenience.

You would think that the Herndon police department would be rounding up these scofflaws and turning them over to ICE. You would be wrong. The Herndon police department has no such authority. The ICE will not give the town the authority, because their rules specify special training with ICE that involves at least twenty police officers. I doubt the Town of Herndon has that may police. In any event, apparently only two states, Alabama and Florida, are authorized to arrest illegal aliens on behalf of the ICE. So that’s out.

The presence of these people and particularly those wanting to hire them tends to slow the traffic on Elden Street, the town’s major thoroughfare. A police officer is stationed there during business hours to try to keep the traffic moving. Local charities also provide people to monitor the situation. The town never decided to set up this as a place for day laborers to congregate. It evolved over time because it was a convenient location. However, after more than ten years of dealing with the situation the town decided it had endured enough hassle and proposed an offsite day laborer center.

That was when the controversy started. A local conservative radio talk show host urged his listeners to call the Town of Herndon to complain about the idea. The town was subsequently inundated with calls, so much so that they had to disable their switchboard. Their web site also came careening to its knees. No less than the Virginia Republican gubernatorial candidate Jerry Kilgore railed against the idea of using public money to facilitate connecting some illegal immigrants with day jobs.

Amazingly, despite all this publicity, public officials in Herndon went ahead and voted for the day labor site anyhow. On August 17th, the Herndon Town Council by a 5-2 vote decided to go ahead with funding a new day laborer site behind an old police station. They will use $175,000 in town money to fund the site.

This has not sat well with those with an axe to grind. I get the feeling that most of the citizens of Herndon are for the site. The existing site has been a public nuisance for years. With local police’s hands tied, a new site away from traffic seemed to be a far better solution than allowing the problem to continue to fester. However, conservative commentators and politicians have pilloried Town of Herndon officials for their decision, saying they should be rounding up these illegal aliens instead. Even a lawsuit is now pending to stop construction.

The town is not authorized to be in the immigration enforcement business. Nor are any trespassing or loitering laws being violated. The town has documented clearly why its hands were tied. However, these commentators and politicians are more in favor of scoring political points than actually solving the problem. After all, this is not something occurring in their back yard.

If there is a problem in Herndon, it is not with town officials. It is with the ICE that cannot be bothered to arrest these people. In addition, the problem is exacerbated by regulations that tie the hands of local police departments. The problem also lies with the Congress and state officials, which allow employers to hire day laborers without requiring them to ensure they are hiring people legally. Instead, opponents would rather rail against elected leaders in Herndon, who are simply trying to solve a local problem. Their anger is misplaced.

The leaders of Herndon are to be commended for their pragmatic decision. It is not that I am in favor of day laborer sites in general, but they competently addressed a real problem to the community with the means they had available. Soon the traffic will flow more freely on Elden Streets and Alabama Drive. Should the ICE ever decide to crack down on illegal immigrants in Herndon, they should be easy to find at the new center. Meanwhile the people of Herndon get part of their community back again.