The Times They Are A-Changin': FISA and the Future of American Democracy

These have been strange times indeed. The conservatives who have worked tirelessly - with the support ultrarich who have put a great deal of money into the effort - to turn the society upside down have succeeded in a lot of areas. For instance, for the first time in our history: 

• Productivity has exploded while jobs have disappeared (overseas or been bundled into a single position);
• The "a rising tide raises all boats" economic law has been suspended for a quarter century as the economy improved but for only one segment of society;
• Torture is now an acceptable defense mechanism;
• Illegal wars are now accepted defense mechanisms;
• The Constitution is no longer the foundation of our law so much as a quaint, outmoded document to be by-passed whenever its restrictions are inconvenient to power;
• The power of the president has been expanded until it rivals the power of a king while the power of the Congress has been reduced to a combination rubber stamp/debating society;
• Govt officials are no longer expected to obey the law and need suffer no consequences when they break it;
• And neither political parties nor individual politicians seem to care what voters think.

It is this last which is perhaps the oddest of all for a putative democracy. For over 230 years our nation has been, through thick and thin, war and peace, panics and boom times, in the last analysis powered by the people and the Constitution. Political parties which did not build on that basis died and were replaced by ones that did (anybody remember the Whigs? the Know-Nothings?). The Constitution required it, the parties obeyed it (with some notable and brief exceptions), and our freedom rested on it.

In eight short years that has all changed.

 We now find ourselves, again: for the first time in our history, in a political culture which appears to take no notice whatever of the preferences of the people, yet which still manages to survive as our "representative" when what it represents is the opposite of what a majority of Americans are on record as wanting.

• Asked if we want the war ended, 70% of us said yes; it hasn't been
• Asked if we want universal health care, 80% of us answered with a resounding affirmative; it wasn't done
• Asked if we wanted to see the car companies bailed out of the mess they'd made, a majority of us said no; they were anyway
• Asked if we want to expand SCHIP, 80% said yes; our "representatives" said no 

Those are just examples, of which there are dozens. Despite clearly demanding change in both '06 and '08 - change in direction, a reversal of much of the last eight years - what we are getting instead is simply a slightly lamer version of the same old policies, the ones we just said we didn't want. Instead of opposition parties, we find ourselves saddled with political representatives who insist on continuing to move away from us rather than toward us and have rigged the system to such an extent that it's impossible to change its direction through the only available means - the ballot box. Whatever we say, however we vote, they ignore us in favor of their own agenda and dare us to do something about it.

We have never faced this situation before and there are millions of us, stunned, who refuse to believe that it's happening. "It can't be," they say. "America doesn't work like that."

It does now. And that situation is likely to continue until we step up and take the responsibility of demanding real change. The very first step must be to return the country to the Constitution and the rule of law. We cannot, must not, allow our leaders to treat our law as an inconvenience to be crumpled up and thrown in the fire whenever it gets in the way of their thieving or spying. There must be consequences for breaking that law or our leaders will be forced to assume it's not important to us and they can continue to defy it whenever they - or their contributors - wish it.

Finally, we must reverse the increasingly accepted idea that anybody who blievesnin the Constitution is some kind of kook.

The word "liberal" has undergone a remarkable transformation over the last eight years.  All that has been necessary to qualify is a belief in such radical, exotic and fringe-leftist concepts as search warrants before the Government can eavesdrop on our communications; due process before the state can encage people for life; adherence to decades-old Geneva Conventions restrictions which post-World-War-II America led the way in implementing; and the need for an actual, imminent threat from another country before we bomb, invade, occupy and destroy it. 

Now added to the pantheon of "liberal" dogma is the shrill, ideological belief that high government officials must abide by our laws and should be treated like any other citizen when they break them.  To believe that now makes you not just a "liberal," but worse:  a "liberal score-settler."  Apparently, one can attain the glorious status of being a moderate, a centrist, a high-minded independent only if one believes that high political officials (and our most powerful industries, such as the telecoms) should be able to break numerous laws (i.e.:  commit felonies), openly admit that they've done so, and then be immunized from all consequences.  That's how our ideological spectrum is now defined.

How do we re-define "our ideological spectrum"? By demanding its reform. By demanding that the rule of law be restored. As a first step, we need to reverse FISA.

The Foreign Intelligence Surveillance Act (FISA) as enacted in 1978 permitted targeted surveillance to collect foreign intelligence information and protect national security.  The PATRIOT Act upset the balance established in FISA and permitted surveillance to be conducted in criminal investigations without a showing of criminal probable cause to a judge.  The PATRIOT Act also permitted roving FISA wiretaps that violate the specificity and nexus requirements of the Fourth Amendment.  Roving FISA wiretap orders are not required to specify the target or the communications facility (such as a telephone) to be surveilled.  The FISA Amendments Act of 2008 further diminished FISA safeguards.  The FAA permits the interception in the U.S. of communications that Americans have with non-citizens who are abroad without adequate judicial supervision of such surveillance. The FAA also permits that surveillance to occur on a massive scale:  if resources permit, the FISA Amendments Act allows the NSA to collect in bulk the international communications that Americans have with non-citizens abroad.

---

          Moreover, even with the significant revisions to the FISA, President Bush asserted virtually unlimited authority under Article II of the Constitution, and secretly authorized the NSA to engage in a warrantless wiretapping program that violated FISA and the Constitution.  Telecommunications carriers that assisted in that surveillance program were granted immunity from civil liability, thus leaving those whose rights were violated without any legal remedy against the carriers and inviting them to assist with unlawful surveillance in the future.

This MUST NOT BE ALLOWED TO CONTINUE. It makes a mockery of our justice system and reduces our freedom to the level of feudal peons. If we are to return to the rule of law, FISA MUST BE REVERSED before anything else can be done. As long as it stands, it confirms the monarchic power of the Executive since the only argument for telecom immunity is "the President told us to do it, therefore it's legal." It is an argument which assumes - arrogantly and with no legal basis whatever - that anything a president orders is ipso facto legal simply because he ordered it. This is the very essence of the difference between a monarchy/autocracy and a democracy: a dictator/king has that power; a democratically-elected president DOES NOT. With a precedent like FISA sitting on the books, we might as well be living in Saudi Arabia or Burma. 

Thomas Nephew points to an effort being made to get Obama to change his mind and reverse FISA. Go and sign the petition TODAY. This is the deadline.

The next step: Criminal prosecutions for the Bushies who consistently broke our laws.

Comments

[Thomas Nephew]

Thanks, Mick. Good news: as the idea with the 5th most votes (ca. 12000, IIRC), "Get FISA Right, repeal the PATRIOT Act, and restore our civil liberties" made the top 10 at change.org, and will be featured in a press conference tomorrow in DC with the other winners -- from marijuana legalization to sustainable US economy to one about small business toymakers. There's also talk of an ensuing online campaign of some sort, though I don't know the specifics.

We (GFR/RPA) teamed up with Bob Fertik and Democrats.com, and their "Appoint a Special Prosecutor for Bush War Crimes" idea; that idea unfortunately missed the top 10 by 19 votes.

Democrats.com put links to both ideas side by side in their top post today, and we did our best to promote both ideas via facebook and other means once that decision was taken a few days ago.

I'm bummed about the special prosecutor loss; after Judge Crawford's confirmation to the Post of torture at Gitmo, I had some hopes that Fertik would be on the dais tomorrow saying "see? we won't go away" And we won't, regardless; but it would have been a nice win. Thanks for your help here!

[mick arran]

I'm sorry I let it go so long, Thomas. I didn't realize there was an end date. I doubt it was much help but feel free to use it for any other anti-FISA or anti-PATRIOT campaign that comes along.