If you haven’t been following the ins and outs of the whole FISA debate, you’d be hard-pressed to see what the big deal is, and why so many folks — including me — are up in arms about it.
FISA stands for Foreign Intelligence Surveillance Act. The act, passed in 1978, essentially dictates how intelligence is gathered — both physically and electronically — by our government when it comes to “foreign powers” and “agents of foreign powers”. There’s a special court, called a FISA Court, made up of 3 judges, which reviews and approves warrants which authorize the collection of that intelligence.
The court’s been around since 1979. Between 1979 and 2006, 22,990 warrants were applied for. 22,985 were approved.
That’s right — in 27 years, only 5 warrants have been definitively rejected.
Let’s just say that getting a warrant from the FISA Court isn’t that hard.
The issue at question is that, starting after 9/11, and possibly even before then, the Executive Branch essentially ordered America’s telecommunications companies — including Verizon and AT&T — to cooperate with the National Security Agency (the intelligence agency responsible for signal gathering) in a massive warrantless spying and search program, involving telephone calls, emails, Internet activity, and text messages.
To this day, we still don’t know the extent of this program. The Bush Administration, meanwhile, maintains that FISA doesn’t apply — the warrant requirements of that act (which, we saw above, aren’t onerous) were superseded by, get this, the Authorization of Use of Military Force against Terrorists (the 9/11 AUMF).
For all you and I know, we were spied upon. That’s why 40 lawsuits were filed against AT&T, Verizon and other telecom companies arguing that our privacy was violated when they chose to go along with the Administration in this then-covert activity.
Now, for your average Democrat, this seems like a no-brainer:
Do I take the side of, for example, Verizon and a man whose job approval rating stands at 19%?
Or, do I take the side of people like John Doe, whose closest brush with al-Qaeda planning was his twice-weekly visit to an Internet poker parlor?
Take your time. This, apparently, is a tough one. Don’t rush!
In what is yet another shining moment in this Congress, Democrats chose to give the telecoms immunity from the lawsuits — all they have to tell the federal judge now overseeing their cases is that the White House told them it was A-OK to spy on you.
But wait, there’s more!
In addition, the new law goes even further. When it comes to domestic-to-international surveillance, the law essentially does away with the warrant requirement — the whole point of the original law, since it concerns foreign powers and their agents, even if the agents are American citizens in the U.S.
The key instrument established by the Original Dads that preserves our liberties — the warrant — is now something we have to do away with, if we are to be safe.
I didn’t come up with that, Glenn Greenwald did. It all boils down to the same thing.
But what about what Speaker Pelosi said — that “the law is the exclusive authority and not the whim of the president.”
Guess what? That was already part of FISA! And, in a whim, back in 2001, President Bush waved it away.
From 2001 through 2007, the NSA straight up broke the law. They didn’t bend it, they broke it. And what Democrats have done is essentially say, “Who cares?”
Which leads me to my final point: what’s to prevent future Presidents, whether Democrats or Republicans, from doing what George W. Bush did?
The answer is nothing. The defining question these past few months was whether we were a nation that believed in the rule of law or the rule of men.
The answer is definitive. We believe in the rule of law, so long as it doesn’t impinge on the whims of men.
By that token, why bother with laws, then?
Now do you see why I, and so many others, are so titanically angry tonight?
Further reading: You can visit this Slate article, which states why the new FISA law is so bad. Also, for a deeper take, read this guest post at Jack Balkin’s place, with more here and here. Finally, the relevant Wikipedia articles on the original 1978 FISA act and the new one can be found here and here.