Don’t trust, verify

The recent L.A. Times editorial “Trust, but verify,” regarding the Foreign Intelligence Surveillance Act reform proposals now advancing through Congress, rightly notes that the term “foreign intelligence” casts too “wide a net to leave to the discretion of an administration, especially one that has shown we can’t trust its judgment.”

The problem is that the Foreign Intelligence Surveillance Court itself — a secretive, non-adversarial court that has rejected only a handful of government wiretap requests in its 30-year history — provides absolutely no basis on which the American people can trust its judgment to protect them from abusive government conduct. The court’s necessary secrecy prohibits it from disclosing its legal rationales for granting search warrants to government agents. Thus it is grossly misleading for critics of President Bush’s domestic spying program to suggest that a court that the citizens cannot hear, see or even understand is sufficient to restrain the tyrannical impulses of the executive branch. We simply have no basis to believe that such impulses have been and are being restrained.

Because of its secrecy and non-adversarial nature, the FISA court fails to act as a sufficient bulwark against the tyrannical impulses of the executive branch. As such, Congress must create a corollary court that would be open, adversarial and invite civic participation in the affairs of the executive branch. This special court would allow citizens to remove unconfirmed U.S. government officials — who, unlike their confirmed colleagues, cannot be impeached — if it is found they engaged in malicious or politically motivated conduct.

This special court would be established through the constitutional process handed down to us by our founding fathers. The constitutional amendment establishing this court would place parameters on the definition of “civil officers of the United States” in Article II, Section Four. Under the amendment, only those government officials who have been confirmed by the Senate would be conferred with the title of “civil officer,” while all other unconfirmed employees of the executive branch would be deemed “civil servants.” Civil officers would continue to be subject to the impeachment and removal process, while civil servants would be subject to the jurisdiction of this special court, and indeed the citizens themselves. Any unconfirmed U.S. government employee attempting to use their station for malicious or politically motivated purposes — as, sadly, many in our government have done — would be identified and brought before this panel of federal judges who would determine whether to bar that individual from government service.

We’ve finally left behind a year during which virtually every nook and cranny of the U.S. Justice Department was politicized. Two months ago, the U.S. intelligence community attempted to throw a Persian rug over the Iranian nuclear weapons program — because certain officials determined that proliferation of such weapons is much ado about nothing. At this point, for any member of Congress — Democrat or Republican — to suggest that unconfirmed U.S. government employees are beyond malicious or politically motivated conduct is an insult to the intelligence of the American people.

If our nation is to arrive at that still-elusive balance between security and civil liberties, we must expand and modernize the basic biology of American government — removal from office by another branch — throughout the executive branch, not continue to live with the illusion that angel wings magically grow on the backs of government employees.

Timothy Rieger is a former congressional lobbyist for the U.S. Campaign to Free Mordechai Vanunu.