What if it was the 2nd Amendment?

What if the recently passed FISA bill (H.R. 6304) addressed the Second Amendment? What if the President claimed that, in order to defend us from terrorists, he needed the power to remove all guns from any home in America? Now, he wouldn't say it that way in press conferences and speeches. He would instead say that he needs to have the capability to disarm terrorists and that this capability needs to be flexible and all encompassing to effectively combat the threat. He would say the terrorists are fighting a new kind of warfare and that the old laws don't work anymore. He would remind you that terrorists are trying to kill you and that disarming them is vital to the interests of the nation. And he wouldn't be alone in saying it. There would be a host of administration officials, pundits, operatives, and supporters giving rationale and voicing their support.

If you look closely, you may notice that the actual law allows for people who have done nothing wrong to lose their guns. You may notice that the administration can confiscate anyone's guns without telling anyone why they are doing it, or even whether they are doing it or not. If you spoke up about this, you would be told that you don't understand the nature of the terrorist threat. You will be told that unless the president can take away anyone's guns at any time, the terrorists will strike again and again. They will have already won. You would be told that innocent people who have nothing to hide needn't worry, because even though the administration could take away your guns, they won't. You would be told that you are putting our troops and law enforcement officials in harm's way by your ridiculous requirement that they stop off at the nearest court house to get a judge's order before they can say "Drop your weapon!" to some cornered criminal. When you point out that the existing law never required that, you will be told that the existing law was written a long time ago and things have changed since then. If you point out that the Second Amendment is one of the cornerstones of our democracy, you would be told that your idealistic and naive ideas can't work in the real world, and you are enabling our enemies. You will be told that you care more about the rights of terrorists than the safety of your own children. You will be told that when the terrorists go on a killing spree in the local mall, well, you'd better be ready to accept responsibility for it. And you would be called unAmerican.

Americans of all stripes should and would be up in arms about this. The outrage would be loud and clear and would overwhelm the fear-based arguments of those backing the law. But it's not the Second Amendment this time around. It's the Fourth. The loss is not so tangible. You can't hold it in your hand like a gun. For example, you would know if federal agents came to take away your guns. You would know if a Democratic administration confiscated the guns of all registered Republicans. With surveillance you don't know. The current FISA legislation is actually more insidious than any legislation targeting gun ownership. Every one of the ten amendments comprising the Bill of Rights is precious, whether we can hold it in our hands or not. Every one of them was put there specifically to protect the innocent and that guarantee of protection for individuals has been the source of strength for America for hundreds of years. Weakening them in the face of a threat weakens us as a nation. And if we weaken ourselves, well, the terrorists have already won.

See what others are writing The Huffington Post.

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.