FISA Fallout

As I try to keep it in check on the Obama cave-in, Hunter crystallizes my thoughts, particularly on the exclusivity argument.

OBAMA: It restores FISA and existing criminal wiretap statutes as the exclusive means to conduct surveillance – making it clear that the President cannot circumvent the law and disregard the civil liberties of the American people. It also firmly re-establishes basic judicial oversight over all domestic surveillance in the future.

No, it really doesn't. Because FISA never went away -- it doesn't need "restoring". FISA is FISA. It was FISA, it is FISA. The only reason FISA would need "restoring" is if we are all willing to accept that it had been invalidated entirely by the president's actions -- that the president was not only able to simply break the law, but managed to erase it from the books entirely on his own say-so.

That's absurd. That's asinine. A law does not need "restoring" when it is violated, it needs enforcing. And given that the Democrats have latched onto a piece of legislation designed explicitly to prevent that from ever happening in any meaningful way, there is nothing to be the slightest bit proud of. It is complete acceptance of an illegal program, dressed up as hard-fought victory, and by God the Democrats responsible for it and voting for it, Obama included, naturally presume that if they type up some lovely-sounding bullcrap about it, they'll be able to pretend it is something other than strategically planned and executed cowardice in the face of lawbreaking [...]

...FISA was not expiring. FISA was not falling into a legislative black hole. It continued to exist, as the exclusive means for electronic surveillance of the American people, and all it required was a warrant, and all the warrant required was probable cause. That's it. That's what this entire, months-long parade of panic, bluster and torn hair has been about, that it was just too damn difficult for the administration to be asked to show two sentences of probable cause to a judge in a secret hearing before collecting whatever electronic information about you, your neighbors, your family, your friends, everyone in your town, everyone in your social organizations, everyone in every restaurant you've ever been to, etc., etc., etc. they wanted to collect.

That's about as concise as you can make it. We had a law. The President decided he didn't want to follow it. In response, the Congress immunized the President and his partners for their conduct, on the grounds that now, future Presidents will have to follow it. But if that was true, Bush wouldn't have broken the law in the first place. "If men were angels, no law would be necessary," the saying goes.

The only reason that the President wouldn't follow the law regarding FISA and couldn't be bothered to write up a warrant is because they were spying on people with no intelligence value. Maybe political enemies. Maybe activists or grassroots leaders. Maybe foreign diplomats. Who knows? We certainly won't, because this horrible deal shuts down any ability to find out. And this bill actually ratifies a lot of the warrantless spying in which Bush and his cronies have engaged since 2001. It allows for "bulk collection" - the mass sweeping up of all communications into a giant drift-net. And it has an exception for "exigent circumstances" - to be judged by the Attorney General and the Director of National Intelligence - in which case the executive wouldn't need to consult any judge before commencing with spying. That's what eviscerates the Fourth Amendment and renders the rest of the bill kind of impotent. And quoting a fact sheet from Sen. Feingold's office:

If the government goes forward with surveillance before obtaining court approval, and the court subsequently determines that the government’s surveillance violated the law, the government can nonetheless keep and use any information it obtained. The compromise does not include a provision from the Senate Judiciary Committee bill that gives the FISA Court discretion to impose restrictions on the use of information about Americans acquired through procedures later determined to be illegal by the FISA court.

This is a better bill than some of the FISA fixes offered previously. But FISA, itself a rubber stamp most of the time for electronic surveillance, needed fixing only in TIGHTENING civil liberties protections, and the end result of this bill loosens them.

As for Obama, it's important to understand that he is no saint who is the perfect vessel of all things sweet and good, nor is he a depraved animal of the same stripe as a John McCain on failed conservative ideology. He's somewhere in the middle - and when we disagree with him, we have to let him know. For all the disappointment, one thing that has held so far throughout this election is that Obama listens to criticism and mostly reacts to it. Thereore, that criticism must be sustained and loud. If we truly are the change we've been waiting for, then we must be diligent in forcing Obama in the direction we desire.