Some discussion in the wake of the Obama inauguration relates to the reasons the public would or would not support a legal confrontation with the US government. We've seen Gonzalez wave the "watch out"-argument to avoid a war crimes indictment, and former White House counsel argue the violations are state secrets.

Their arguments fall apart if the shoes were on the other feet: If We the People-as-abuser were to abuse power just those in the Executive-Legislative branches have done, the government officials-as-victim would not, for a "good reason" or "necessity" (1) accept a violation of the law and rights of US government officials; nor (2) accept those violations without an accounting for the transgressions.

Their lawful confrontation would be no different than what We the People must do: Understand what went wrong and why; and hold accountable those who breached their Constitutional obligations. The Constitution and Supreme Law and treaties are binding on all; and cannot be ignored unless We the People agree to change the agreement and replace it within a new Constitution. Any argument for inaction against We the People-as-abuser would be cast aside within the ranks of the government officials-as-victims as being complicit with unreasonable abuse of power: Indefensible moral slavery to tyranny and unconstitutional.

It's a false argument to suggest US citizens should not stand up for themselves, or avoid challenging what may or may not be lawfully classified unlawful operations. If the US public were, as suggested above, to learn they could violate the rights of US government officials, and those officials did nothing, then the public would get the (incorrect) message that the law meant nothing; and those in power were not willing to use their authority to defend the rule of law, their rights, or the justice system.

Rather, if the public-as-abuser were to violate the rights of White House counsel, the White House counsel would use all options they had to remedy that violation.  They would not turn a blind eye to domestic violations for the "greater cause" of external enemies. They have treated American citizens as the domestic enemy, have violated our rights, and have treated as if we are living in Afghanistan or Iraq: Subject to unlawful searches and seizures, reckless management, and irresponsible leadership.  Their answer isn't, as it should be, real change or accountability, but another smokescreen of double standards. A departure from written law is the definition of illegitimate government, one the Framers did reject, and White House counsel-as-victim would never tolerate.

The Iraqis and Afghans did what Americans are not allowed to do: Use all options to reject that arrogant abuse of power. While our hands have been tied, this government has used military force against civilians who dared to confront the US government's illegal activity. That is a reckless abuse of power, and flawed assumption.

The White House counsel-as-victim would never tolerate illegal abuses while having its hands tied to prevent its defense. Yet, the White House counsel did just that at Guantanamo: After POWs were taken out of the right, and denied the means to defend themselves using all options, this White House counsel did impose war crimes through their agents on those that were taken out of the fight. That is a war crime, and the DOJ OLC memos show this US government will impose the same abuses on American citizens even though we are protected, not engaged in combat, and have our hands tied.

Indeed, We the People, seeing the White House opposition to our abuses of them, would more likely to be selective about what we hoped to raise in the future, especially if the White House counsel-as-victim were willing to stand up for themselves and engage in a lawful confrontation. They would argue that we had not power to "classify" the evidence related to the illegal activity; nor that the illegal activity should not be examined; nor that the public should "look forward" while the White House counsel-as-victim were prohibited from remedying the violations. They would demand fact finding to ensure this abuse of their rights never happened again.

It is arrogant to suggest the public agree to inaction that the White House counsel-as-victim would never accept as reasonable. The White House counsel would be first in line to point to the abuses under segregation to argue why similar "selected classes" cannot be unequally treated. We should not second-guess ourselves now as we reject the US government excuses to avoid examining what went wrong, or what we will do about it.

When Americans discuss whether we should or should not confront the US government, put aside the issues of what should or should not be done in terms of rights: The question is whether, with the absense of action, the US government -- seeing our collective inaction to the known violations -- would respect the citizenry, not to mention the rule of law.

Our job as citizens isn't to put the US government in the corner, but to remind the US government that it cannot expect to place American citizens in the same corner as those the US government is supposedly fighting; nor expect American citizens to restraint itself in exercising all lawful options to do what the US government refuses to do: Enforce rights, constrain power, and defend our liberties.

The US government may not respect the law, the Constitution, or our rights, but our willingness to speak out, and confront these illegal FISA violations and war crimes signals that Americans are willing to stand up for ourselves and demand respect, even when the US government officials ignore their oath and refuse to respect the rule of law. To argue anything else would absurdly ask the public to believe the White House counsel -- if similarly confronted, and in our position -- would do nothing, when they would and have shown they will violate the law to put themselves above the law and We the People.

The White House counsel has shown what it is willing to do. They do make excuses to violate the law in secret, and arrogantly believe that violation will never be detected; or when it is, make excuses to not take responsibility for those violations. The US government would never accept a decision of We the People-as-abuser to put ourselves above the law, and not be accountable for our violation of the White House counsel-as-vicitim's rights.

The US government legal counsel ask that we dance to a tune of tyranny, not one of mutual respect for rights. That imbalance in assumptions means the American public is reasonable when doing what the White House counsel would do if it suspected it was in the same position.

Whether their rights have or have not been violated using illegal means is a secondary issue, one for the White House counsel to prove, not merely assert. Their claims, as ours, are valid petitions as grievances, subject to proof. The error is for the White House counsel to claim they can make blind accounsations about our supposed complicity with illegal activity; but then prohibit the public from challenging that abuse of power. The White House counsel cannot reasonably use accusations by putting We the People on the defensive; nor expect us to prove we haven't done what the White House counsel has demonstrated they are willing to do: Ignore rights using illegal methods.

The question is whether the Congress reasonably agreed to this illegal activity; or whether, in defiance of its oath, the Congress agreed to illegal activity which circumvented both FISA and Geneva because they believed nobody would discover the illegal activity. The error, as the White House counsel has learned, is that when We the People learn our rights, the Supreme Law, and treaty obligations have been violated, we shall use all lawful options to remind the US government that that abuse and arrogance shall not go unchallenged. The US government legal counsel are arrogant to suggest that the American public would do anthing less, nor suggest the White House counsel in the same position-as-victim should constrain itself from using all lawful options to remedy the injustice. Illegal activity will get revealed. The question is whether White House counsel would like to perpetuate the myth that lawyers enjoy "more equal" rights before the law. They do not.

Added: Valued Rights

Some might suggest the US government-as-victim would not challenge We the People-as-abuser because the violations were reasonable. This is an imbalanced argument premised on an assumption that says some rights are more valued and must be enforced; and that other legal obligations are superior to rights justifying their violation. This argument presupposes the US government actions are valid only as measured by the intent of the violators. That assumption is an expression of relative values, not the law.

It cannot be argued that the US government officials-as-victims of FISA violations would say, "We accept those violations," because we're prejudicing what We the People-as-abusers would do. Indeed, We the People-as-abuser might under this construct violate different standards which were of value to the government officials-as-victims. 

We the People-as-abuser might look at the government official-as-victim's values as trivial. The abuse is whether the victim is forced to endure the attack on values in silence or is blocked from rising to their defense. Government officials would never agree to be silent over any transgression, however invented it might be; nor would they agree to any conditions which thwarted them from defending their values. 

We the People cannot reasonably be expected to endure conditions which government officials-as-victim confront as intolerable. Yet, this sliding scale on values is irrelevant. The question  before us isn't whose values are or are not  most important; but what is the law. Values  shift. The law is certain.

The apologists would rationalize the FISA violations because the government officials as either abuser or victim would agree to these specific violations. Yet, We the People-as-abuser would not necessarily violate only values the government officials-as-victim would agree. Rather, the government officials-as-victim would challenge We the People-as-abuser when we abused their valued rights. They would use the law as the means to assert their rights and preserve their valued principles, but they have no power to impose values where those values are unrelated to the agreed-to-law.

But We the People have an obligation not to justify putting government values before our own; but to defend the Constitution against domestic enemies who value lawlessness to achieve dubious security. Indeed, the US government officials would not agree if We the People-as-abuser violated other government official-as-victim's valued rights, outside the "permissible" violations of Geneva and FISA.

One class of citizen does not enjoy superior rights; nor can one class of citizens claim their valued rights are more important. The American public has the same claim to redress grievances as those who were granted power, in secret, to conduct combat operations and defend the United States. Their conduct and their power is subject to legal review.

Any demand that We-the-People-as-abuser should be subject to one standard of review is inconsistent with the principle of equality before the law. The US government officials-as-victims cannot claim they have a superior claim to their valued rights affording them special discretion to violate the FISA or Geneva; while leaving We the People-as-abuser without any remedy to challenge that imbalance and injustice.  We the People-as-abuser would not be allowed to violate any law, and neither the most valued nor lesser valued rights of  the government officials-as-victims. The government officials-as-victims would argue that any violation of any law and rights is intolerable. Indeed, any violation cannot stand before the law, otherwise the law is meaningless.

The White House responses after 9-11 shows what they will do to confront an abuse. Whether that response is prudent or imprudent is different than whether it is lawful or unlawful. Those who are induced to react, as the US government was after 9-11, can convince themselves the prudence of illegal activity. The same happened after the Reichstag fire.

The problem is when the defense of that illegality fails, and the US government-as-abuser crafts convoluted legal memos to retroactively explain away abuse and "justify" creating a new standard to measure conduct. This is a shifting scale of values, not written  law. The law is fixed so there is no moving standard on what is or isn't acceptable. Moral clarity means nothing until it is ratified with written law. The government official-as-abuser has perverted the law, argued for public inaction, yet pretend they-as-victims can pervert the law to assert their values over others. That is tyranny and unconstitutional.

It is irrelevant the US government-as-abuser disagrees with what We the People-as-victim value. The standard isn't whether We the People are or are not a victim; but whether the government officials have attacked the US Constitution. They have. They have no excuse, only a litigation strategy of smokescreens. They have no hope but offering greater obfuscations.

Errors In Comments Below

Constraining Passion

We the People as-abuser fall within Federalist 49: "The passions ought to be controlled and regulated by the government." Yet, the apologists for the US government's illegal FISA and Geneva violations have no answer to what will constrain the passion of the US government officials when they refuse to be controlled or regulated by oath, statute, and treaty obligation. We the People-as-abuser would not be permitted to do what these government officials have done.  The new established form must ensure the passions of government officials remained equally constrained, not afforded special immunity.

We the People have an obligation to ensure the government, government offiicials, its contractors and agents are subject to control and regulation, even if that means restructuring the relationship between the law and man; and the relationship between government and government officials. We are not perpetually bound to a system which turns a blind eye to US government official illegal activity.

Supremacy Clause

The question is whether government officials understand the oath of office is binding on them as it relates to the statutes, Constitution, and treaty obligation. The Supreme Law may be referenced in the Constitution, but this seems lost on government officials who have a loyalty to something other than the Constitution, Supreme Law, treaty obligations, or statutes.

Saying, "the Constitution is the Supreme Law" is incorrect: It is part of the Supreme Law. The Constitution does not say, "Supreme Law" (capitalized), but supreme Law (lower case):

"This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land."

Despite this error, the point is that the oath binds them to principles which they refuse to put first, but second to something else. It is important to reference the spectrum of standards to show what principles US government officials have put second.

The Supreme Law (capitalized) includes the state statutes which can be used to prosecute Federal government officials, telecoms, and others allegedly complicit with a domestic Rebellion against the Constitution. Inaction does not mean the "supreme law" permits inaction. The Constitution does not permit unlawful activity which would nullify the document, treaty obligations, statutes, federal codes, state statutes, or the Supreme Law

However, "supreme law" does not mean that the US government, as was done with FISA violations, may ignore "lesser" privacy statutes at the State level, especially when FISA requires during wartime a legal compliance system.  The question on FISA isn't whether State privacy statutes "trump" the lawful federal statutes (they do not); but whether an executive order is legal when it ignores FISA and says the illegal activity precludes enforcement of state statutes (it is not). Congress' error is to pretend it could keep secret an agreement to do something Congress did not expressly intend through FISA: A violation of FISA. Edgar v. Mite Corp., 457 U.S. 624, 631 (1982) If the activity were permissible, then the US government should not have created excuses to ignore the FISA court or hide prisoners at Guantanamo, North Africa, Eastern Europe, on floating vessels, or in other locations. DOJ OLC cannot credibly argue that the abuses were permitted; but it requires the prisoners to be placed in harms way in unusual locations.

Change to US Governance

The Federalist Papers leave open the option for change, especially when the US government refuses to meet its legal obligations, and the existing structure of government proves to be inadequate to preserve liberty, thwart tyranny, or compel obedience to the law.

Federalist 78 sets the legal groundwork to discuss what must be done, as now, when the US government refuses to abide by written law; will not keep impeachment on the table; refuses to enforce Geneva; and pretends We the People have no power to compel enforcement:

Federalist 78: Until the people have, by some solemn and authoritative act, annulled or changed the established form, it is binding upon themselves collectively, as well as individually; and no presumption, or even knowledge, of their sentiments, can warrant their representatives in a departure from it, prior to such an act

The 10th Amendment reserves all non-delegated power -- including the power to annul this Constitution -- to We the People. Had the Framers not intended this power to exist, they would not have left open the option for We the People to use a solemn and authoritative act to annul or change the established form. Implicitly, this means the new established form would more effectively constrain the passions of US government officials who defy FISA, Geneva, treaty obligations, the laws of war, state statutes, or this US Constitution.

One failure of this established form is the failure to challenge the incorrect notion that this abused power cannot be redelegated to new centers of power, outside what the Framers imagined US government officials exploit.

The question isn't whether we should enforce the law; but whether, when, as now, the government officials argue the law has "no meaning," what new structure of government will make that "determination" irrelevant.

It is arrogant for US government officials to argue they are "for" the rule of law; but their actions, in secret, belie that oath; and they circumvent not only the law, but the mechanisms needed to realign their thinking to the supremacy of law, not secret agreements.

This US government argues implicitly that there is no mechanism that can confront their superior loyalty to secret agreements; and that there is no mechanism within the established form that can challenge their failure to timely enforce treaty obligations, the law of the land, or the Constitution. That is unacceptable and demands the public openly discuss the remedy. Whether that remedy is within the established form or within a new system of governance unrelated to this Constitution is not the starting point.

One question is what new established form is required; and what lawful mechanism will take us to that objective. The government officials-as-abusers absurdly argue that the status quo is irrelevant; yet, they offer no solution to achieve the alternative. that is not leadership, but a smokescreen. However, if We the People-as-abusers were to argue the same, we would be lectured by government officials for failing to be responsible, and sent to another line. Yet, these government officials-as-abusers say they cannot be held responsible; and that we should ignore their irresponsibility. These government officials-as-victims would never give We the People-as-abusers that discretion. Neither shall We the People.

The US government officials made the rules, and ignored them. We the People have no power to make rules. That power is delegated to Congress. Yet, we have no defensible power to ignore rules we do not like. Yet, US government officials-as-abuser and -victims argue they have power to make rules which are affront to liberty; and they have the power to ignore rules which they find inconvenient. We the People cannot be compelled to remain forever bound to an established form which allows that arrogant imbalance of power to go unremedied.

Whether the Constitution does or does not say it can "only" be changed by Amendment is unrelated to whether the Constitution should be disgarded and replaced. When we talk about change, but refuse to correct the systemic problems of the Constitution, the question is whether this Constitution should be replaced, not merely changed. This Constitution does not say that it is the only Constitution conceivable:

Preamble: "do ordain and establish this Constitution for the United States of America"

There is no word "final," "last" or "only" in the clause, leaving open the option that there is a different Constitution.

The basis for change or not changing is moot when we refuse to examine what went wrong; nor discuss what solutions, including a new Constitution, will remedy the specific problems. The threat of changing the constitution by supplanting it with a new one is one check on abusive government: We the People, without warning, may revoke the document and compel the US government to agree to something new.

The US government officials-as-abusers may "value" their "right" to ignore FISA; but this decisions is at the risk of We the People-as-victim to revoke the abused power, and deny them the discretion to ignore the legal requirements. Whether the oath is binding on them seems lost; the question is whether the US Government can be restructured to prevent the abuse from taking shape. There are ways to do this.

There are ways to start over, not Amend, and create a new Constitution. One method includes a Constitutional Convention which is not the same as the Amendment process. Another method includes a ceremony where the leadership, as was done at Runnymeade, is forced to sign a document to substantially address the abuses and rebalance the power. We the People have the "liberty" to "voluntarily" pay taxes through lawful incentives. The same framework can be presented to US government officials to inspire them to voluntarily agree to a new established form. It is an error to suggest that the Constitution can only be reformed with an Amendment.

Convention Against Torture

Whether the Convention Against torture is or isn't relevant is unrelated to the question of what applies to POWs during wartime: Geneva Conventions ban all abuse. CAT only prohibits torture.  The "Supreme Law" may include CAT; but the apologists for inaction ignore the Geneva conventions prohibiting outrages against civilians, and all abuse against non-combatants. This obligation rests with the detaining power regardless the status of the prisoner.