A fundamental error in understanding the FISA failure
Posted by Charles II on March 5, 2008
Glenn Greenwald has yet another (yawn) excellent article on FISA, in which he demonstrates that the original law gave powers far too broad to the intelligence agencies, such that right-wing judges have made a mockery of the Fourth Amendment even while following the letter of the law. The FISA Court acts as a rubberstamp, in part because only one side of the issue is given voice and in part because there are no civil libertarians on the bench.
But even this well-considered analysis misses the point. The matters the FISA Court deals with are at the very least criminal, and more usually are aspects of covert wars. Judging from the scope of wiretapping, the United States is at war with the world. We tap our allies for commercial and military information because they might become rivals. We tap neutral countries to learn of their dealings with our enemies. We tap our enemies, which are numerous. And we tap our own citizens because they travel abroad or talk to foreigners or are politically active in unpopular causes.
The real problem is that we do not declare who our enemies are. And so the FISA Court, even if it were run by angels, has no rudder. Everyone and anyone can be declared to be dangerous to our security.
And has been.
9 Responses to “A fundamental error in understanding the FISA failure”
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getaclue said
the republic is dead.
there will be no election in november.
these people have not spent 8 years amassing dictatorial powers only to turn it over to someone else.
it’s over. the murder of the 4th amendment is the final nail in the coffin of our once great republic.
Phoenix Woman said
We beat slavery, we can beat this. Nichievo.
Charles II said
I tend to agree that the American Republic died, getaclue. But something will follow it. I’d like that something to be the Second Republic. Part of getting there is having a clear understanding of why the first Republic failed.
Money as votes, concentration of media, tolerance for smear/fear politics, corporate power, lack of employment/health security… all these are partial explanations for the failure. But our tendency to view anything foreign or even unusual as dangerous is another aspect of the collapse. That tendency, for example, explains why we have a dearth of Arabic speakers in government in a nation that is rich with them.
EoH said
“The matters the FISA Court deals with are at the very least criminal….”
But that’s the point. Are they alleged criminals against which we apply the full weight and majesty of the US Government? Or are they just opponents of the GOP?
EoH said
Regarding the Republic or Empire exchange above, I agree that historians will conclude that the flawed but aspiring republic we were governed by expired in January 2001.
The Senate has cravenly given the Emperor his every wish, while pretending to oppose him so as to keep their wealth and convince the mob to remain in the coliseum, enjoying the games rather than taking to the streets. The legions are in Germania. The treasury is bare. The Alexandrian library is under the eye – and match – of a centurion. The light’s promise is cast into darkness, the word no longer celebrated in the cellars of Rome but at the right hand of the Emperor.
And so on with other historical analogies. What we gonna do about it?
Charles II said
EoH asks, But that’s the point. “Are they [the subjects of FISA surveillance] alleged criminals against which we apply the full weight and majesty of the US Government? Or are they just opponents of the GOP?
The crux of the issue, EoH, is that the American Constitution is a declaration of universal human rights. It should only modified for those with whom we are at war, and there, only around the margins.
The subjects of surveillance are always alleged criminals or enemies. Only evidence proves the matter one way or another. And yet we do have genuine enemies, and for them, the Fourth Amendment does not apply in its fullness.
Even if angels are in charge of wiretapping, and even if strong civil liberties protections are written into law, there is the subjective element. This is why we it’s so important to reduce the number of groups/people subject to surveillance by clearly stating publicly who our enemies are. We have absolutely no justification to wiretap the Brits or the French (nor even really the Russians). Publicly we call Britain and France allies, and yet in secret posture we treat them exactly as we treat our enemies.
This is wrong. This is what is rotten at the heart of FISA.
Charles II said
EoH asks, “What we gonna do about it [the decline and fall of the American empire]?”
I think the most important thing is to teach… to teach why it is failing, to persuade others that our country is strengthened by diversity and dissent, especially if it is accompanied by a sense of ownership and engagement.
MEC said
“the American Constitution is a declaration of universal human rights. It should only modified for those with whom we are at war, and there, only around the margins.”
The problem right now is that the Busheviks’ Enemies List is so short:
“Everybody”
Therefore, the Constitution is suspended for everybody.
Charles II said
Too true, MEC.