The FISA flap

There are a couple of very strange bedfellows appearing together these days on the Senate floor -- The Economic Stimulus Package and the effort to amend the Foreign Intelligence Surveillance Act (FISA). The Democrats failed by one vote to get their package past the waiting Republican filibuster. OCP (our current president) will probably get his way for the umpteenth time with this spending measure. And it is not a tragedy for the country.

Action regarding the FISA reauthorization is another thing. If it is passed into law the way the Bush administration and their Republican Senate surrogates want, it will be a tragedy for the country. The resulting diminution of Fourth Amendment rights to privacy and prohibition of unreasonable search and seizure is incalculable. Do not just take my word for it. Constitutional lawyer Glenn Greenwald often posts about this issue at Salon.com. To quote from his most recent article two days ago:

This is really, really scary. We better forget about checks and balances and oversight and restraints of any kind and everything else and just make sure that the President can spy on our emails and telephone calls with no oversight, otherwise Al Qaeda is going to slaughter us in our Homeland. And we also better make sure that telecommunications corporations don't have consequences when they break the law, otherwise we're doomed, because Al Qaeda is coming.

What do I mean, more specifically ? At my main blog, South by Southwest, I often write about the FISA flap. The points I make are these:

1. Telecommunications companies scoop up (data mine) our communications for the government to look at if they choose, much of the time without the warrant required in the Constitution.


2. The Bush administration is holding the current legislation hostage to a grant of retroactive immunity to these companies for that unlawful behavior begun almost at the start of Bush's term. This would be unconstitutional because Congress is forbidden from imposing its will on court decisions, under the separation of powers doctrine.


3. In addition to the Congressional Intelligence committees overseeing and helping the National Security apparatus to "protect Americans" from terrorists, the Judiciary Committees have a co-equal duty to "protect American" civil liberties under the constitution.


4. The complexity of the current world of electronic surveillance and the FISA statutes that govern the Governments use of it to spy on people, does not excuse Congress from exercising very informed and vigorous oversight of the entire intelligence community. The Executive Branch claims that certification by the Attorney General or the Director of National Intelligence constitutes some sort official oversight. It does not. Self-monitoring in not the oversight required of the three co-equal branches of government to check and balance each other under the U.S. constitution.


5. No Senator or House member is required to get a security clearance. The Bush administration cannot lawfully deny them access to the official information held by the Executive branch. A fight about it would be mediated by the courts, but no one ever wants to take it to that level and precipitate a so-called constitutional crisis.

And so these strange bedfellows -- intervening in an economic recession and intervening in the collection of foreign and domestic intelligence -- live together on the Senate floor. They always have to fight to get the chance to amend the legislation, to get the obligatory 60 votes on anything that matters, and to get the interest of legislators' constituencies.

I guarantee it is worth your interest, study and citizen action. The recession will come and go, having its own way with us. But FISA is not like that. Domestic surveillance will have its way with us, unless we say "no," through our elected representatives. This link contains all the phone numbers you need, including free "800" numbers that can transfer you to Senate offices.

View my current slide show about the Bush years, "Millennium," at the bottom of this column.

My links: cross posted at TPM Cafe Reader Blogs.

My “creativity and dreaming” post today is at Making Good Mondays.

Technorati tags: news news and politics politics congress fisa domestic surveillance