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February 05, 2018

Protecting Civil Liberties

There is no way that the allegations in the Nunes memo, even if they are all true and there is no mitigating evidence which was withheld, exonerate the President from allegations that he or his campaign collaborated with Russians or that he attempted to obstruct justice. Conversely, what Trump did or didn’t do is not relevant to whether the Justice Department and FBI have misused the FISA process.

We need the Mueller investigation to continue.  My first hope is Mueller finds that there were no serious offenses by Trump.  That would be best for the country so long as it is true. If there were offenses, I hope the evidence is strong and clear.  Weak charges would also be bad for the country.

We need the investigation into the FBI and Justice Department to continue.  Of course, the Democratic memo should be released once it is vetted for possible security problems. The FISA Courts, set up after 9/11, were a deliberate dangerous compromise to find a way to deal with the threat of terrorism while preserving our Constitutional right to be free from unreasonable government surveillance.  Because FISA is secret, it can easily be abused.  There must be oversight by Congress; Congress needs to be able to cry foul.  The partisan system is good for assuring that oversight is not just cheerleading.

One of the dangers in the FISA Court is that the judge hears only from the FBI and Justice.  That has to be since you don’t want to tip off the target of investigation.  However, the one-sided nature of what the judge hears puts a burden on the prosecutors and investigators to tell the judge everything significant that they know and puts a burden on the judge to be curious about sources.  If the judge wasn’t told that the Steele memorandum was paid for by the Democratic National Committee and the Hillary campaign, that is at least a violation of trust.  If the decision to grant a warrant to spy on Carter Page was based mostly on the memo whose origin was not revealed to the judge, this is a very serious violation of Carter Page’s civil rights, no matter what he may or may not be guilty of.  The FBI and Justice need to be told that withholding material information from the court is NOT OK IN ANY CIRCUMSTANCE.

There must always be oversight of the FBI.  Such oversight is not anti law enforcement or unpatriotic.  The FBI has some great accomplishments.  It also has dark spots in its history starting with J. Edgar Hoover, harassment of Martin Luther King and Einstein, and, according to both Trump and Hillary Clinton, continuing in the tenure of James Comey.  It is sad to see my liberal friends criticizing investigation of the FISA incident because they are afraid that it will somehow exculpate Trump or at least distract attention from the Mueller investigation.

The defense of civil liberties often means defending unpopular or even obnoxious causes and people. Currently, we must have a thorough investigation of the allegations against Trump and also oversight of the investigators.  No matter how much you may wish Trump impeached, you should want the evidence to be solid and credible AND CONSTITUTIONAL.  On the other hand, no matter how much you want Trump to stay in office, you should want the investigation to continue free from obstruction.

Whether Trump is innocent or guilty, the FBI and Justice can still be guilty of unconstitutional behavior.  Whether the FBI and Justice are guilty, on the other hand, has no bearing on whether Trump colluded or obstructed justice.  Both Trump and his opponents are conflating these issues; we shouldn’t let ourselves be confused.

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