My FISA Lament

So many have already said it so much better, but I may as well add my voice. The recent passage of the bill to "modernize" FISA (H.R. 6304) is being cheered by conservatives as a Bush victory, and panned by liberals as a blow to the Constitution. The conservatives are right, it is a Bush victory. But the liberals are right, too, which is why I lament the passing of the bill. The two big talking points of the bill are telecom immunity and expansion of the warrantless surveillance program.

Telecom Immunity
The question is "Why?" It's pretty well established that the earlier NSA surveillance program broke the law. Even knowing that, I would be okay with the telecom immunity provision if the administration could give a good rationale for it. They haven't.

President Bush says that immunity ensures the cooperation of the telecom companies in future information gathering activities, but that makes no sense. When law enforcement or intelligence agencies approach any business with a legitimate request for information, it is against the law for that business to withhold the information. It's called obstruction of justice. So, since these companies must comply, how does retroactive immunity help? Another reason may be to protect these companies from the expense of law suits. That doesn't wash. These companies have deep pockets and the standard defense in a civil law suit is to use your deep pockets to bleed the plaintiff dry. The last possible reason is to prevent details of administration activities from being released during the trials. Names would be named and specific (possibly illegal) actions pinned to them. Political futures are at stake. This is the only rationale that I'm not seeing an argument against.


Expanding Wireless Surveillance
This bill expands the ability of the Executive Branch to spy on American citizens in the United States without oversight. It contains some legalese requiring reporting to the FISA court and periodically to Congress, but there are loopholes big enough to drive a telecommunications truck through (See Common Dreams article.) The grace period for spying without permission expands from three days to seven and doesn't have to stop if the court denies the request (it continues through the appeals process). Worse, spying activities and rationales against specific individuals need never be disclosed. It weakens the 4th amendment requiring warrants before search and seizure. The only check that balances the increase in power is to trust the President to act responsibly. That's not how a "Nation of Laws" is run.


Agreement
This is sounding like a slam on the administration, but that's not the point. The bill is a bad bill regardless of who is in power. We can agree on a few things. Our government was designed so that no single branch has too much power. In the case of domestic spying, the executive must work with the court system. The intent is to limit domestic spying to legitimate uses. This bill weakens that particular check and balance.

Currently liberals are distressed, while conservatives are cheering the gain of a tool against terror for the current President. But there is a strong possibility that Obama will be president. Will they cheer that he has this power, too? What about future presidents? Power corrupts and this bill gives the kind of power that Nixon could only dream of. Instead of relying on a group of amateur plumbers, some future power grab may be made with all the sophistication and resources of the NSA. Do we really need to do this to defend ourselves against a terrorist threat? There will always be threats and there will always be someone telling us that our safety requires that we give up some of our Constitutional guarantees. Don't listen to them. In the long run, losing our identity by chipping away at the Constitution is always the greatest threat.

This post was edited July 13th, 2008 for clarity.