Saturday, June 21, 2008

FISA and the Death of the Constitution

After months without much movement, the House on Friday approved a new FISA bill that grants the telecoms a free pass for their cooperation in the Bush administration's bid to gut the Constitution, specifically the Fourth Amendment. Presented as a compromise and an exercise in 'bipartisanship' (read: capitulation), the deal as written is anything but.

The bill requires only two stipulations to have civil suits thrown out: a, if the phone company was assisting the government in its surveillance program or, b, if the company received a letter from the government assuring them their action was legal.

The effective result of this language is make the written language of the Constitution second to the whims of the Executive branch in determining legality, clearly a chilling precedent to set. On inauguration day, the President swears to uphold and defend the Constitution, not to rewrite it as he sees fit.

There are a few things about the debate that need to be established, as they have been conspicuously absent from public discourse concerning the issue. First, the debate was never, at any point, about national security. It was always centered on granting immunity. In all public statements in support of the immunity deal, proponents invoked images of an intelligence community hampered by outdated and outmoded laws that left the country in peril. But the evidence that such statements were red herrings and inaccurate was overwhelming.

For instance, foreign-to-foreign communications that pass through US networks were held up as a reason to pass the bill, but no member of Congress would have rejected such a bill, making it clear that it was immunity for the phone companies that was the real target. The Attorney General at one point even fabricated a story about the US not being able to spy on a phone call made from a safe house in Afghanistan (until he changed countries as he squirmed under scrutiny), hoping no one would catch on that such a call would have been fair game even under the original FISA statute.

At every opportunity, the debate over the FISA bill was brought full circle to an accusation that anyone who didn't support immunity was somehow in bed with terrorists. That every member of Congress would have been willing to grant the intelligence community every single tool they needed, sans immunity, is invariably left out. That the argument is allowed to continue without the slightest question raised is infuriating, as one would hope that anyone of functional intelligence would be capable of discerning the glaring logical inconsistencies inherent in the argument.

For an idea of just how restrictive the FISA court has been since its conception, consider that between 1973 and 2007, the court rejected a total of 9 applications while approving 25,360. That's an incredible 0.035 percent failure rate. The court is nothing but a rubber stamp, but apparently that's still too big an obstacle for the Executive branch to uphold the Constitution.

As with the debate over habeas corpus, the proponents of immunity toss around the idea that the US should be able to spy on foreign agents and terrorists while simultaneously attempting to bypass the very apparatus used to establish that point. Again, and it can't be stressed enough, the issue is not whether such individuals should be spied on. The only thing at stake is whether in a Constitutional republic the rule of the founding documents should take precedence over the fleeting whims of a rogue Executive branch. That anyone is considering the latter over the former is intriguing. That the entire legislative branch, presumably a large portion of which are lawyers, defies credulity.

Indeed, upholding the Constitution has somehow become a partisan issue, a curiosity of American political history.

Much has been made since the House vote of the capitulation of the Democrats, but anyone surprised by the action wasn't paying much attention. Liberals like to pretend that the Democrats are free from corporate influence and believe them to be more like the populist campaign image than the same, tired Washington players they are in the space between. If history hasn't dispelled this notion by now, there can be no hope of a revelatory moment anytime soon.


Sunset (Il)logic, February 24
Capitulation on Telecom Immunity, June 15
John McCain and the Telecoms, June 9

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