Keeping Faith in the Rule of Law
By Walter F. Mondale

Whenever America has been confronted by serious threats, we have struggled to prevent our fears from overwhelming our belief in our system of law and justice. Set against these fears has been faith in the rule of law; faith that when America protects personal liberties, it is stronger, not weaker; faith that when America honors its Constitution, it is more secure and more powerful in the world.

Unfortunately, the victory of fear over faith is nothing new for us. We saw it in the Alien and Sedition Acts, in the infamous World War I loyalty crusades of the Minnesota Public Safety Commission, in the notorious "Red Scare" Palmer raids following that war, and in the disgraceful internment of Japanese Americans during World War II. That fear was what Joe McCarthy was all about. As we now know, all of these anxieties were based on an unfounded fear that the American legal system was too weak to protect us from our perceived dangers so we reached beyond the law. In every instance, we disgraced ourselves and hurt innocent Americans.

As they replayed the horrifying 9/11 tapes the other day in the Moussaoui trial, we were chillingly reminded of the legitimate fears again confronting our nation. The question is: What do we do about it?

Roosevelt once said that the only thing we have to fear is fear itself. But it sometimes seems that the only thing Washington has to talk about is fear itself. As Bob Herbert wrote, "The É exploitation of fear and patriotism has opened the door to such gruesome and morally indefensible activities as torture, warrantless spying on Americans, and the wholesale incarceration of foreigners -- perhaps for life -- who have no chance to confront their accusers or answer the charges against them."

In the 1970s, I served as chairman of the Domestic Subcommittee of the famous Church Committee. In an investigation that was unparalleled in history, we probed the vast array of abuses against thousands of innocent Americans by almost every agency of the federal government: the CIA, FBI, NSA, the Army, Treasury, and the Postal Department. Often, acting on presidential orders, these agencies moved secretly and without restraint into the lives of thousands of innocent Americans like Martin Luther King, Jr. Our report on these devastating abuses led to the creation of the House and Senate committees on intelligence, President Ford’s executive order on intelligence-gathering activities, and the adoption of the Foreign Intelligence Surveillance Act of 1978 in which we created the FISA court one hears about so much today.

As you may know, the FISA court operates in secret. It is made up of federal judges chosen by the chief justice. It decides whether to grant warrants. FISA is a criminal statute.

Our committee, in shaping these remedies, tried to do it in a way that adapted to the legitimate needs of our federal intelligence authorities. We made it easier to obtain warrants. The special court and Justice Department were given all of the support they needed. The court has done everything possible to be available at all times to our government.

This system, now in operation for nearly three decades, has been highly successful. It has been praised by former attorneys general, and FBI and CIA directors. The New York Times noted that "The Administration has not offered the slightest evidence that it could not have efficiently monitored the Al Qaeda-related messages while following existing rules. É [T]here is not a shred of proof that the illegal program produced information that could not have been obtained legally, had the Administration wanted to bother to stay within the law." If the Administration has some reason why the law should be changed, surely it should ask the Congress to do so.

Despite the clear language of the law, despite the very positive experience with the FISA system, the Administration simply decided, in secret, to ignore it while claiming specious legal justification for their blatant illegality.

I was directly involved in these reforms, first in the Senate and later as vice president. It is simply not possible to believe that we intended to excuse the president from complying with this law; in fact, the act was passed precisely to hold presidents accountable. We explicitly rejected the notion, heard from Nixon and his predecessors and now being heard again, that there is an implied authority in a president to do as he pleases by simply uttering the two words: national security.

The measure was shaped and adopted by bipartisan leadership. It passed the Senate by a vote of 95-1. After long debate, President Ford decided, and his attorney general so testified, that the president could and should be governed by FISA. Later, President Carter took the same position.

Now, this warrantless domestic spying program, leaked to the press, has been confirmed by the president. He intends to continue it. His attorney general claims that the Authorization for Use of Force resolution, passed early after 9/11, permits the president to ignore the clear wording of the FISA. But the FISA question was never discussed and never mentioned in the resolution. It is impossible to believe that Congress intended to repeal the specific FISA provisions.

So here is where we stand tonight on the question of whether the president may, as he sees fit, wiretap or otherwise invade the privacy of any American. The spying goes on. We do not know precisely what these agencies are doing because the Administration says they won’t take it to the FISA court and they won’t tell us, because they say to do so would expose us to another terrorist attack.

The congressional intelligence committees were established precisely to prevent these kinds of abuses. But, they will not do it. In an editorial called "Kabuki Congress" the Times said: "Faced with a president who is almost certainly breaking the law, the Senate creates a panel to watch him do it and calls that control É ." Congress is being stiffed; as Jay Rockefeller said, "it is ‘under sight’ when they tell us what they want us to know; it is ‘oversight’ when we know enough to ask our questions." Today, we have "undersight."

This evening I was given a copy of the Federalist Papers. In it, our founders clearly express support for a system of checks and balances, where, as they put it, we would "pit ambition against ambition." They believed that all human history had taught the need for "auxiliary precautions" upon an official’s exercise of unaccountable public power.

Of course, that’s precisely the illegality going on today. Our founders would be appalled, and so should we. In fact, we should be alarmed to the point that we do something about it -- in the courts, in the Congress, and in the public life of our nation.

Almost more than any other audience one could assemble, those of you who are here tonight really know what’s at stake in this issue. We really need you. s

Former Vice President Walter F. Mondale is a partner at Dorsey & Whitney. His article is excerpted from an address he delivered April 26, 2006, at the

25th Anniversary Dinner of the Fund for the Legal Aid Society, where he was honored for his service to the cause of equal justice for the disadvantaged.