Op-ed: TRUTH DECAY by John P. Flannery

John Flannery and Former Nixon White House Counsel, John Dean

On 9-11, I was rounding the Lincoln Memorial and had a clear view across the Potomac to the Virginia side where I saw a mushroom cloud that rose to the sky composed of dirt and debris.

I worked in the Cannon House Office Building at the time and called my staff to discover that the twin towers in New York had been attacked by terrorists, as had the Pentagon in Virginia – and the plane that crashed into the Pentagon was that great dirt cloud I watched rise up high into the air.

By October, a bi-partisan U.S. Congress approved the so-called USA Patriot Act.  It was a bitter event because we missed an opportunity to do better.  The House Judiciary Committee had cobbled together a unanimous bi-partisan compromise under Committee Chairman Jim Sensenbrenner but at the 11^th hour, just before the floor vote, then Republican House Speaker Dennis Hastert replaced Sensenbrenner’s Judiciary Committee compromise bill on the House floor with a wide-ranging wrong-headed substitute.

You really should read the bill as most members of Congress never did; there were only two copies of the bill available at the time of the vote.

The bill accomplished two things that haunt us to this day.  There were: first, additional barriers preventing the public from knowing what our government was really doing, and, second, a grant of authority to the government to rummage around in our private papers, hard copy and digital communications, without warrant or cause.

These changes did not protect us from terrorists but did result in serial abuses of our right to be let alone.

What had been outlawed after Watergate, those sneak and peak entries and burglaries, were allowed again against any “terrorist suspect” and the definition of a “suspect” proved quite elastic.

President Richard Nixon’s counsel, John Dean, told investigators when Nixon was in office that there was a burglary of Daniel Ellsberg’s medical files ordered by President Nixon himself to discredit Ellsberg for releasing the “Pentagon Papers.”

President Nixon famously said in an interview with the late David Frost that, “if the President does it, then it is not illegal.” 

Dean has underscored, however, that, while the President has some unstated prerogative powers, those Presidents who have invoked these “prerogative” powers, get in trouble – President Eisenhower with his U-2 spy flights, JFK in the Bay of Pigs fiasco, and Presidents Nixon and Johnson in Vietnam.

Among the many troubling documents released by Edward Snowden before he arrived in Moscow to sip vodka with his cold swekolnik soup, was a top secret court order directing Verizon to turn over to the FBI and to NSA all call detail records created wholly in the United States including local telephone calls – that’s some billion telephone calls.

The Electronic Privacy Information Center (“EPIC”) has filed a petition with the Court attacking the secret court order as without any lawful authority since it didn’t involve “foreign” intelligence.  (For more information, you may visit EPIC’s web site - http://epic.org/ )

The petition says it is “simply unreasonable to conclude that all telephone records for all Verizon customers in the United States could be relevant to an investigation.”

Since this court order applies to “all Verizon domestic customers,” it includes you (if you are a Verizon customer) but also members of Congress and federal judges, including Supreme Court Justices and employees.

The Executive Branch is thus able to scrutinize the communications and associations of the co-equal branches of government, of the Justices, Judges and of the Members of Congress in the House and Senate. 

Associate Justice Sonia Sotomayor wrote, “Awareness that the Government may be watching chills association and expressive freedoms.  And the government’s unrestrained power to assemble data that reveal private aspects of identity is susceptible to abuse.”

A government that conceals information critical to public policy decisions while chilling dissent can’t help but cause truth decay.

A Greek philosopher, Anacharsis famously said, “Laws are like cobwebs, for if any trifling or powerless thing falls into them, they hold fast, but if a thing of any size falls into them it breaks the mesh and escapes.”

Is our government too big and arrogant to respect and constrain its conduct by the web of laws and regulations that we citizens respect and obey?  Apparently so, and it’s high time we said, loud and clear, “Enough is enough.”