For security's sake, feds must re-earn America's trust

By Alan Keyes

Sen. Rand Paul's filibuster against the so-called Patriot Act ended on Wednesday night.

Reported the Washington Times: "Mr. Paul, who spoke for more than 10 hours, finally relinquished the chamber floor at 11:49 p.m. saying, 'My voice is rapidly leaving. My bedtime has long since passed.'"

Paul's words are not exactly the stuff of legend (as I recall the experience, when people are dealing seriously with the country's national security, "bedtime" is little more than a notion), but they were appropriate for the "show trial" quality of much of Congress' activity these days (which I talked about in my column last week). That quality is almost enough to make one forget that the survival of our nation and our liberty often depends on the results of that activity.

Nothing is more critical to America's defense against the increasingly pervasive threat of terrorist attacks within our borders than our ability to gather and assess and act on relevant, timely, and accurate intelligence. Given the fatal consequences of failure, if the officials responsible for that mission tell us something is necessary to achieve that end, we should be disposed to provide it. And America's elected representatives have been disposed to do so, almost to a fault.

Their disposition has reflected the fact that, though the American people have usually regarded most politicians as, shall we say, less than habitually truthful, they still believe that, when the chips are down, the people responsible for our national defense are loyal to the survival of the nation and its Constitution. So Americans are easily persuaded by arguments like those of Fred Fleitz – former CIA analyst and career government intelligence and national security functionary – in his recent article at National Review online: "NSA Data collection – necessary or unconstitutional?" Fleitz disagrees with Rand Paul. He thinks Senate Majority Leader Mitch McConnell was right when he "recently introduced a 'clean' – that is, with no changes at all – reauthorization of the Patriot Act, which extends three of its provisions on electronic-surveillance programs used to protect our country against terrorist attacks. The most controversial is the NSA metadata program enacted in Section 215 of the Patriot Act."

"Opponents of the 215 program," Fleitz says, "claim it is an unconstitutional violation of privacy rights and say that is has played no role in protecting the United States from terrorist attacks. Both of these claims are untrue."

Fleitz states emphatically that:

1. The NSA collects large numbers of phone records – not the contents of phone calls.
   
   
2. The program is subject to strong oversight by the executive branch, Congress, and the courts, and is used only for national-security investigations. Only 22 people at the NSA are allowed access...and they are barred from any data-mining.
   
   
3. The 215 program has been a successful tool in stopping terrorist attacks. It has been defended by many intelligence officials and members of Congress.
   
   
4. 35 of 38 court decisions have found the 215 program to be constitutional.
   

These arguments are plausible. In this or that particular, they may or may not be formally true. But they suffer from one fatal flaw: No one familiar with the recent history and present culture of the United States government can simply believe the claims are actually true. Instead, they believe that –

1. NSA oversight of its personnel has been lax, allowing unauthorized persons with the necessary skills to access and leak vital and seriously damaging information.
   
   
2. The cynically politicized culture of the U.S. government, in evidence at the IRS, the Justice Department, and elsewhere, makes it likely that information is being sought and abused to intimidate and harm American citizens and other persons not connected with terrorist activity.
   
   
3. Formal laws and procedures that exist for the sake of national security, like those intended to regulate cross-border access to the United States, are not enforced for political reasons, allowing terrorists into the United States, as we know, sometimes as a result of tax-funded government programs.
   
   
4. Government officials and members of Congress have obviously lied about Benghazi, Obamacare, the provisions and impact of proposed trade agreements, etc. There is no reason to credit what they say about limitations on the NSA's intelligence gathering.
   
   
5. The judges and justices of the U.S. Supreme Court are thoroughly politicized. They openly, unapologetically display partiality, bias, and prejudice in cases having to do with education and state laws respecting the institution of marriage, for example. There is no reason to believe they are not doing so when it comes to judgments about the constitutionality of the NSA's programs.
   

Bruised by consistent experience over the last decade and more, many Americans simply don't believe in the institutional or personal veracity and integrity of the U.S. government. Fleitz rather contemptuously puts this distrust in the context of America's "venerable history of suspicion of government and government secrecy":

"Sen. Rand Paul, R-Ky., has said that America's Founding Fathers would be 'appalled' at the 215 program. Actually, Sen. Paul is probably right, if only because the Founding Fathers lived in the era of wooden ships and simple firearms and had no notion of modern warfare and weapons of mass destruction. I suspect they would be appalled at many aspects of modern society."

Fleitz's snarky dismissal of the good judgment of America's founders shows why Americans' present distrust of the government extends to careerists like Fleitz – whatever their expertise – when they act as government apologists. In both military and diplomatic affairs, America's founders appreciated the vital importance of covert intelligence activities. They also argued that a certain degree of trust was logically required when it came to national security matters. Writing about the "idea of restraining the legislative authority in the means of providing for the national defense," Alexander Hamilton observed that all but two of the original states of the union "have refused to give it the least countenance, wisely judging that confidence must be placed somewhere...." (Federalist No. 26)

But precisely because they understood the inevitable need for such trust, the founders also understood that it was essential to make sure government officials would be called to account when they violated it. This was the reason they took the bold step of giving the representatives of the people in Congress the power to impeach and remove federal officials – including the president, vice president, and justices of the Supreme Court – for such violations. In the past two decades, America has witnessed egregious failures of national security, egregious breaches of the Constitution, and an equally egregious unwillingness in the elected representatives of the people to call anyone to account for them.

Madison pointed out that, after providing for the government's ability lawfully to control people subject to its jurisdiction, it was imperative to make sure the government could control itself. Because our elected officials have neglected to use the Constitution's provisions for doing so, Americans have good reason to believe that the U.S. government's self-control has failed. From "Jade Helm" to border security, from NSA intelligence gathering to trade negotiations, they have no confidence that the present crop of officials can be trusted to act for the nation's good. Instead of self-righteously deriding those who represent that lack of confidence, elected officials, particularly those in the GOP's congressional leadership, should be acting decisively to prove that the government's self-control has been restored. Tragically, they seem more disposed to declare war on the understandable distrust of the people they are supposed to represent than to act decisively to renew the government's severely damaged credibility. All the more reason to conclude that it is urgently necessary to build an alternative to the sham partisan process they rely on to maintain themselves in office.

© Alan Keyes