FISA: Big Brother and Some Big Picture Questions

On Friday the House of Representatives took a bold step towards, well, representing the people, in voting to pass their version of the FISA amendment, which unlike the Senate bill does not provide amnesty for telecommunications companies. (NYT [1]) These companies may have (“or may not have,” but I would comfortably wager must have because otherwise why all the fuss?) worked with the government to spy on American citizens without a warrant, and our Reps had been debating whether to absolve these corporations for breaking the law at the government's behest.

This latest development in the FISA fight is both heartening and an opportune moment for reflection on how progressives should think about this now old trick of conflating our security with our civil liberties in order to get us complacent about abuses of government power at the sacrifice of our basic rights.

Certainly since 9/11, it has been a trademark trick of the Bush administration to claim that in the interests of security and patriotism, Americans must give up certain important rights, like our 4th Amendment right against warrantless searches and seizures, and like our right to access the court system. Had the House bill included a retroactive immunity provision absolving telecoms of any fault for breaking the thirty year old law governing intelligence gathering, the extent to which this current Administration and complicit corporations have trampled upon our constitutional rights may have gone the way of the ill-fated tootsie pop conundrum [2].

I digress.

So as it stands, there’s still a chance that American citizens will be able to use one of the few remaining mechanisms for checking and curbing what this FISA fight symbolizes in the utmost, abuse of governmental and corporate power. That mechanism is the civil justice system. These individuals will be able to challenge the presumption that in the pursuit of security we must sacrifice important rights, and we must do so with no questions asked and no limits or guidelines around the extent to which we must make that sacrifice.

The White House administration said that if the House’s no-retroactive immunity provision survived, “the measure would be ‘dead on arrival’ when it moved to the Senate and… would be vetoed by the President if it ever got to his desk.” (NYT [1]) So, this is by no means the last occasion to talk about FISA, nor is it cause just yet to sit back and relax without fear of being illegally spied upon.

As this plays out, how can Americans challenge the “security vs. rights/privacy” dichotomy that amnesty-supporters falsely present as a choice one has to make? I think one step is for us to rethink the assumptions behind the arguments for telecom amnesty, the first being that these lawsuits will unfairly burden poor little corporations that were just trying to be patriotic and help the government fight terror. Some suggested questions to ask each other and our representatives:

1) Where’s the evidence that our security would have been threatened by following the law as it stood, which had special, flexible procedures for obtaining information in time-sensitive moments and emergency situations?

2) What does it do to our concepts of Democracy and constitutional rights to know that our President can change the rules of the game at whim, without consequence?

3) How can individuals fully and wholeheartedly participate in a Democracy when they have a flimsy basis for believing that their rights are valued and protected by our government?

4) What would be the impact of taking away access to the courts in this key moment, in which governmental power and corporate privilege are running square against the rights of individuals? What does this do to people’s sense that there’s a system in place for the administration of justice for regular people and not just corporations?

5) To what extent would granting retroactive immunity foster a sense among many Americans that living in an Orwellian state is a normal and necessary fact of post 9/11 life? Is this healthy for a Democratic society? Is this the type of government we want for ourselves?

This FISA debate is not just about people’s right not to be illegally spied upon, or to sue when someone violates their rights. It’s also about the American public’s faith in our government as a protector of both our safety/security and our rights. And it’s also about restoring the public’s faith in our civil legal system as one way we can ensure that our rights are valued.