I heard a lot of talk about how the FISA bill would not absolutely block court cases for unconstitutional wiretaps. That of course was largely untrue and most of the pending cases will be dismissed because of the retroactive immunity granted by Congress. The Electronic Frontier Foundation intends to expand its lawsuit instead of dismissing it. It will now include the government as a defendant, a risky tactic, as sovereign immunity defenses have served in previous cases for the government to avoid responsibility. Wired reports that the EFF may have documentation sufficient to get around the tactics the government has used to avoid disclosing what it did. Once again our ability to find out what our government has been doing will depend on the integrity of the people involved in the clandestine activity. If enough information is brought forward we yet be able learn through the courts what has been done to us.
The recent discussions about immunity in the context of the FISA bill have stirred up a great deal of frustration among people who have been shocked or disapproving of the Bush administration’s apparent cavalier attitude to complying with the law. This resentment no doubt provides some of the fuel for the populist movement that seems to be carrying Obama along. Both Republicans and Democrats have expressed to me frustration that there is not even any meaningful investigation of the charges. The administration does not have immunity but it does seem to operate with impunity.
Part of the public’s outrage about FISA relates to the appearance of hypocrisy. The same law-and-order people who advocate strong criminal sentencing standards advocate immunity for the corporate officials whose conduct apparently involved violation of constitutional rights on a massive scale. The sense of hypocrisy is heightened by the color and class distinctions between the criminal justice defendants and the corporate miscreants.
This frustration is very deep and involves what appears to be a failure of our system of checks and balances. The Republican Congress during the first six years of the Bush administration is widely seen as having allegiance to party over country or over the citizens of the country. During this time effort seemed to be directed to covering up the regularly occurring scandals. The two years of Democratic control of Congress have not been signifiantly different in terms of rendering people in the executive branch accountable for their transgressions. The FISA bill in granting immunity for illegal domestic surveillance was profoundly disillusioning for many. It went beyond disregarding disreputable behavior to condoning it.
FISA’s defender’s chant “national security” and to my knowledge there is nothing more than this rather empty slogan to support the position, a slogan that I had thought was used so much by the Nixon administration that it would not be heard again in connection with domestic activity. This slogan has also been used to justify the treatment of detainees and has been gradually rejected by the courts. Without anything to back it up it is just a slogan famously used around the world throughout the twentieth century. People need more substance to the claim for it to have traction outside of Congress.
The defenders of FISA point out that the guilty can still be prosecuted for crimes that were committed but few doubt that Bush will pardon everyone before leaving office. He, however, can only pardon for federal crimes and at least in theory any enterprising attorney general could investigate and prosecute under state law for crimes committed against its citizens. I doubt that anyone believes this will happen.
Bush is likely to pardon everyone in his administration, making the investigations promised by Obama unlikely. If McCain is elected he would not conduct investigations at all, at least as far as I know. The only way the Bush could be prevented from pardoning everyone would be for him to be impeached. If he were impeached, he could not grant pardons during the process. There appears to be no chance that this might happen.
Thus it appears that this itch to see criminal conduct exposed, or at least investigated, and punished will go unscratched regardless of the party favored in the next election. This rather sorry state of affairs is not without local precedent.
Civilization came to the Seattle area in the middle of the nineteenth century. Settlers first arrives on Alki, then some came to what is now the downtown area. A few located near the mouth of the Duwamish River between the two camps. Civilization, as everyone knows, requires government and the settlers were quick to elect a commissioner: Luthor Collins, our first governmental official. Two years after his arrival he was arrested for lynching a Native American. His civic leadership may have contributed to the dismissal of the charge. Later, having rooted himself in the administration of local affairs, he lynched two Native Americans and presumably it was his his august stature that prevented charges from being made.
Democrats, according to Russ Feingold capitulated to Republicans and agreed to grant telecoms retroactive immunity and to expand authority for warrantless wiretap. Democrats appear to have lost a campaign issue with this and conceded to an unpopular position held by the minority party. It is very hard to imagine how this could have happened. This does little to avoid the image of the Democratic Party as a directionless whimp, lacking any sort of strength of leadership.
I have not been following this closely so I was surprised, if not shocked, by the Senate passing the bill which authorizes warrantless wiretaps of people suspected of having terrorist connections and citizens oversees. I was even more surprised that the amendment granting immunity to telecommunications companies who permitted illegal warrantless wiretaps in the past. The motion to strike the retroactive immunity provision was defeated by the unanimous vote of the Republicans (49) and 17 Democrats. Then the entire bill passes with only a few more than half the Democrats objecting.
I haven’t yet looked at the bill but the reporting is odd. The bill is said to bolster the privacy rights of all-abiding citizens while authorizing the government to listen in on conversations of suspects without any warrants whatsoever. It of course is the determination of how you determine who is a suspect and who is not that is the focus of the attention. I have found no explanation of this point. How are non-suspects’ rights bolstered? Besides doing away with the presumption of innocence until proven guilty, on the face of the bill as reported there are a number of constitutional issues that scream out.
This country has a history of abridging liberty and constitutional rights during periods of war. Most famously perhaps was Lincoln’s abandonment of habius corpus for the war-related purpose of diminishing opposition to his war. Justice Douglas, a civil rights advocate, approved internment during World War II.
The problem now is that we are engaged in a military activity we call a war, which Cheney and McCain speculate could last one hundred years. The purpose of the war is to end terrorism, something that has never happened in the earth’s long history. Terrorism is so broadly defined that it includes preemptive strikes, foreign C.I.A. intervention and a host of other activities in which we engage. It confers a carte blanch to attack anyone we choose, as well as legitimizing attacks on us. Realistically speaking there appears to be no end to this war, so I fear there would be no end to the suspension of constitutional rights as we have observed them so far.
Neither Democratic candidate voted on this Senate Bill.