FISA: Why It Matters

by hilzoy

Digby's commenters seem to have been asking her "why the blogosphere is so obsessed with FISA and the civil liberties stuff when it's clear that both sides are equally corrupt". I like her answer, but I'm going to give my own. I won't bother about the "both sides are equally bad" part: it's not true, on civil liberties especially, and if anyone thinks it is, I suspect I won't convince them.

We have a very good Constitution. It's not perfect -- I'd eliminate the electoral college in a heartbeat -- but it's very good. And the fact that we have it is an astonishing piece of good fortune. It would have been so easy for the framers of the Constitution to turn out to be a bunch of mediocre hacks, or for Washington not to have stepped aside after his second term, or for the union to have fallen apart in its infancy. It would have been easy for the country not to have survived the Civil War intact, or for FDR to have initiated a tradition of court-packing (leaving us with a 67 member Supreme Court, full of all the additional justices required for each new President to get a sympathetic majority), or for any number of other crises to have permanently disfigured our Constitutional system. Instead of which, we have a workable political system.

Moreover, it is a system based on individual liberty. We have never implemented that system perfectly, and for most of our history we were nowhere close to perfection. Our Constitution enshrined slavery, and even when we had fought a civil war and granted theoretical freedom to African-Americans, we did not bother to do the difficult work of actually making sure that those freedoms were more than theoretical. We were content, for far too long, to allow our fellow citizens to be deprived of the most basic civil rights, lynched, and held in what might as well have been slavery. Periodically, we have allowed the government to curtail our freedoms, generally under the influence of fear. But our Constitution has allowed us, slowly but surely, to address the challenges we have encountered, together, as one country. Moreover, even at our worst, it has held up an ideal for us to aim at, and reminded us of how far we fall short of what we should be. And while for much too long we did not secure the freedoms guaranteed in our Constitution to everyone, the arc of our history has, in the words of Martin Luther King, bent towards justice.

But there is nothing inevitable about this. The Constitution is, after all, just a piece of paper. It cannot stick up for itself. It needs defenders. It has put in place a structure that makes it more likely that it will find some: when one branch of government exceeds its limits, another acquires an interest in checking it; when all branches conspire together, the people can demand that their rights be respected. No Constitution can do more than this. And this cannot possibly be enough if the people who should defend the Constitution are unwilling to do so.

Our form of government is a gamble on the proposition that while people will, from time to time, be too preoccupied with their own affairs, or too lazy or venal, to protect the Constitution, we are a decent enough people not to let threats to our form of government persist long enough to destroy it. As I said, nothing ensures that this will be true. Fortunately, every citizen is in a position to help ensure that it is. All we have to do is notice, and care, and act. Protecting our Constitution is, always, up to us.

***

Our system of government is built on the separation of powers: Congress passes laws, the Executive implements those laws, the Courts interpret them, and all of us, including the President, obey them. This system is currently under threat. Our President and his advisors believe three things which are wrong individually, but disastrous when combined. These are:

(1) The President can do whatever he wants during wartime, whether or not it violates the laws.

(2) It is always wartime, and the battlefield is everywhere, both at home and abroad.

(3) The President has the right to keep what he is doing completely secret. No one -- not citizens, not Congress, not anyone -- has the right to force him to reveal what he and others in the Executive are doing.

As I said, each of these is wrong individually, but the combination of all three is absolutely toxic. And the secrecy is crucial: if no one knows what the Executive is doing, no one can challenge it.

The FISA controversy puts all three principles together. The President claims that the War Powers he discerns somewhere in Article II of the Constitution give him the right to violate the FISA law, and to enlist the help of the telecoms. The Democrats offered a long time ago both to grant the basic fixes in the FISA law that the President wants, and also to allow the government to substitute for the telecoms in the various lawsuits against them. The latter amendment would have allowed the lawsuits to proceed without the telecoms being in jeopardy. It failed, with only one Republican voting in favor.

If the FISA "compromise" passes, it will mean that a President just needs to authorize some program, and say that he thinks it is legal, and telecoms cannot be sued for going along with it, even if it violates the law. Given a President who claims to believe, as Bush does, that whatever he wants to do is legal so long as it is an exercise of his War Powers, this is a recipe for disaster. Moreover, these lawsuits are the only way in which anyone can get redress, since the courts have ruled (pdf) that no one has standing to sue the government unless she can show that her communications have been intercepted. It's also the only way in which citizens can discover what this program involves, so long as Congress refuses to do its job -- not that Congressional investigations would necessarily have helped, since the administration has shown very little willingness to share information about this program with Congress.

***

George W. Bush and his administration have done everything they can to undermine the separation of powers. This bill would retroactively say that that's OK, and would in addition prevent us from suing corporations that went along with the President's request to break the law. That is a request he has no right to make, and legal liability is the best way of ensuring that he does cannot do in practice what our Constitution forbids him.

It's our Constitution. It's up to us to defend it.

Comments

[Turbulence]

We have a very good Constitution.

We do? Compared to what? If you said we have a very mediocre constitution, I could believe that. It is extraordinarily inflexible so that long standing problems cannot be fixed (electoral college, second amendment ambiguity). Moreover, many of the benefits that our "very good" constitution is supposed to have brought us are enjoyed by people in many nations with rather different constitutions. Is it fair to say that most western nations have "very good" constitutions? If it is, then shouldn't we be realistic and honest and say that we have an average or a middling or a gentleman's C or perfectly ordinary constitution? If it is not, can you explain what properties of our constitution make life better in practice in the US than many other western nations? Sometimes I think that American Exceptionalism is made perfect in our constitution worship.

It would have been so easy for the framers of the Constitution to turn out to be a bunch of mediocre hacks

They weren't? I mean, some were clearly moral and intellectual giants, but you can't get the 3/5 rule without having a large fraction of the group that are, at some level not giants. Moreover, the slavery compromises embedded in the constitution were a complete failure: they were designed to keep the union cohesive, but we had a Civil War anyway.

It would have been easy for the country not to have survived the Civil War intact

I don't think it did. The north won the war and then shortly thereafter, a white supremacist terrorist movement took control of the south, systematically preventing the free exercise of rights for millions of citizens. White supremacists controlled the south to the same degree they did under the CSA.

But our Constitution has allowed us, slowly but surely, to address the challenges we have encountered, together, as one country.

See, to me, this seems to be a very low bar to clear. Can you think of any government architecture used by a western nation today for which this statement wouldn't also hold true?

And while for much too long we did not secure the freedoms guaranteed in our Constitution to everyone, the arc of our history has, in the words of Martin Luther King, bent towards justice.

Yes, but that arc has bent towards justice in many countries that don't share our constitutional order, so I'm not sure why you're mentioning it here. Surely the American constitution is neither the only nor the best way to bend that arc.

[publius]

I'm with you on the whole "it's up to people to make the rights real." If you think about it from a public choice persepctive, the FISA deal makes perfect sense. There is literally no natural constituency for these constitutional protections -- certainly nothing that can compare to the telco lobby.

For this to be stopped, it really has to be stopped by a bunch of people whose lives will probably never be touched by this, and who are acting on their ideals and values.

Whether this type of group can stand down a more traditional interest group is the question this fight poses (one question anyway). so far, not good.

[Anthony Damiani]

"Surely the American constitution is neither the only nor the best way to bend that arc."

Unless you intend to make the case that a more just nation would be founded on the premise of executive supremacy and absolute secrecy, I think you just totally missed the point.

[Adam]

For this to be stopped, it really has to be stopped by a bunch of people whose lives will probably never be touched by this, and who are acting on their ideals and values.

Whether this type of group can stand down a more traditional interest group is the question this fight poses (one question anyway). so far, not good.

Does this statement also apply to net neutrality issues? (And I actually did burn y'all out on that topic, didn't I?) :)

[Turbulence]

Anthony,

I don't intend to make such a case at all. I just think that in the course of describing why this issue matters to the country, there is no reason to heap unjustified praise on the constitution. Perhaps more Americans would be more vigilant in protecting their constitutional rights if they didn't buy into the mythology of American Exceptionalism so much.

[hilzoy]

Turb: why exceptionalism? Did I say that other countries don't have great constitutions/systems of governments? Well, some clearly don't -- I'm not a fan of North Korea's -- but lots of countries besides us do.

[Nell]

or for any number of other crises to have permanently disfigured our Constitutional system. Instead of which, we have a workable political system.

I guess this is where we differ. We have an unworkable political system because a corrupt Supreme Court ruled that corporation are persons.

And the system stopped being based in any real sense on individual liberty right then.
So here we are, undergoing the long, piecemeal going-under that results from that concentration of power.

[Turbulence]

hilzoy, what do you mean when you say we have a "very good constitution"? Oftentimes, the phrase "very good" is associated with an implicit comparison. Which would suggest that you think the constitution is very good compared to the government systems for peer nations (no, I don't think we should feel pride at being better than NK, just like I don't congratulate myself for not being a serial killer). If you did not mean to imply that, then I apologize.

However, I must ask, if you don't think the constitution is very good in relative terms compared with peer nations, then by what metric do you find it to be very good? I suppose that if the metric is "has this government system led to continual warfare or anarchy" then we do indeed have a very good constitution. I would hope that the wealthiest nation on Earth might aspire to somewhat higher standards though.

[Anthony Damiani]

Turbulence-- I don't think the post was intended as a paean to American exceptionalism, nor to make a comparison/contrast to peer nations.

If I read right, the virtues of our constitution were being extolled because some of the good bits are under serious attack at the moment. For all of its flaws, our constitutional order does some things reasonably well, and doing away with these would be really bad.

[Matt McIrvin]

We have a very good Constitution. It's not perfect -- I'd eliminate the electoral college in a heartbeat -- but it's very good.

I agree with Turbulence: our Constitution is actually quite bad. It was a marvel by the standards of the late 1700s, but we suffer from the early-adopter problem; many other free countries are running version 2.0 or 3.0 which are much better designed, while we're still running on beta-quality constitutional software with a lot of ad hoc patches to get around the most egregious bugs and security holes, and changes in the use cases and attacker behavior have out-evolved most of the patches.

The most obvious problem, which I think some of the framers anticipated, is that the presidential-congressional structure leads to the executive becoming more and more powerful over the centuries, to the point that dictatorship is a real danger. We're eventually going to have to do something about that.

The reason we need to defend it is just that the alternative is no Constitution at all. I'd like to see people think more about how to get to someplace better without losing the whole thing in the process, but the Constitution itself, combined with the fact that a large chunk of the political and media elite would be actively opposed to making it better, makes this difficult.

[hilzoy]

"Oftentimes, the phrase "very good" is associated with an implicit comparison. Which would suggest that you think the constitution is very good compared to the government systems for peer nations..."

Sometimes, though, it's used in order to suggest that something is good at its intended purpose. That's how I was using it. If I had any comparison in mind, it was to the Constitutions people might have come up with, under the circumstances.

[ThirdGorchBro]

I was just reading this post and marveling (as usual) at the awesomeness of hilzoy, and then I read the comments to find a bunch of people p***ing all over the Constitution. Congratulations for living up to Rush Limbaugh's stereotype of America-hating lefties.

I could talk about the fact that the difficulty of changing our Constitution is seen as a bonus by many (imagine, if you will, what amendments Bush would add if he could); I could talk about the stability the federal system enshrined in the Constitution gives to our geographically large and politically diverse nation, but why bother?

Call it American exceptionalism if you want, but love of country and of the Constitution is considered normal and admirable by most of us, and fortunately the Democratic Party understands that. As a conservative, I'm glad patriots like Barack Obama are in charge, and not people like some of the commmenters I've read in this post today.

[Matt McIrvin]

"Love of country" shouldn't have anything to do with it. If the system's substantively bad in some way, patriotism shouldn't compel me to love it--that, at least, is not the kind of patriotism I want to have.

As for the substantive points: I agree that the difficulty of amending the Constitution has probably prevented a lot of bad changes, and that the degree of federalism we've got is both the thing outsiders understand the least about the US, and probably a necessary feature.
I also agree that if we tried to do a top-to-bottom refactoring right now we'd probably end up with a mess. But I think this is itself a problem, one I don't know how to solve.

[Matt McIrvin]

I'm also not the first to observe that one of the big problems with the US is that too much of our machinery of government (including the office of the President) is bound up with national symbolism, such that a desire to change it can be interpreted as something akin to lese majeste. It's great that we attach great reverence to having a Constitution and a Bill of Rights; but not so great that wanting some of the advantages of, say, a parliamentary system or something else is symbolically close to pissing on the Crown.

British and Canadian people are constantly telling me that we need a nice, powerless monarch, just to get that stuff off to the side and out of the way of real government. It wouldn't fly here, though; we have a lot invested in the lack of a king and need something in keeping with American traditions. Maybe we could make the President an elected figurehead, as exists in some republics.

[dan k]

My last Obama contribution went to these folks instead:
http://www.actblue.com/page/fisa

I suggest anyone who is interested in civil liberties support this group (or the new Glenn Greenwald / Ron Paul / ACLU alliance) since our Democratic party leaders STILL do not understand how to differentiate themselves from Republicans. I am absolutely sickened by this cave and have much less enthusiasm for Obama than I did just a few weeks ago...

[Nell]

@ThirdGorchBro:
I'm pointing to a crucial, horrible court decision that has changed the balance of power in this country over the last century-plus.

Dick Cheney and George W. Bush are pissing all over the Constitution. With the active collaboration of the Demoratic "leadership."

[Donald Johnson]

" love of country and of the Constitution is considered normal and admirable by most of us, and fortunately the Democratic Party understands that. As a conservative, I'm glad patriots like Barack Obama are in charge"

He's not always the most passionate speaker on that subject, IMO. Here's how Obama responded to a question about holding members of the Bush Administration accountable for its possible crimes--

Link

Pretty much what you'd expect from a candidate walking a tightrope. He looks very uncomfortable. Don't criminalize policy differences, but oh, of course if there really was evidence of wrongdoing no one is above the law, but I would exercise judgment, etc...

[Donald Johnson]

He's far preferable to McCain, I hasten to add.

On the Constitution itself, I'd want people to be passionate about the protections it gives us and the remedies that it supplies when our leaders trample on those protections. Whether it is better or worse than what other democracies have I don't know. I prefer the First Amendment to , say, the Canadian laws about hate speech.

[Sebastian]

"Which would suggest that you think the constitution is very good compared to the government systems for peer nations (no, I don't think we should feel pride at being better than NK, just like I don't congratulate myself for not being a serial killer)."

Oh good heavens. Our constitution isn't just better than North Korea. Give me a break. Our constitution is better than that of the UK--see for example the relatively atrocious libel suits which only get filed there because of their lack of a 1st amendment. I might argue that Germany's Constitution is better than ours, but I certainly wouldn't make that argument about any of our other major peer countries--UK definitely not, France in some areas but not most (and their religion thing is really bad), Italy? please, Russia?.

And most of the things you don't like about the US compared to peer nations have absolutely nothing to do with the Constitution. Centralized health care or health care payments have nothing to do with the constitution. And even in countries with some sort of anti-poverty welfare concept in their Constitution, the actual funding level isn't mandated. The difficulty of the amendment process has been dramatically compounded by the fact that people don't even bother to try any more, they just try to get the Supreme Court to make the changes for them. If you wanted to outlaw the death penalty (as a constitutional matter) just amend the constitution. Don't keep asking the Court to do it for you and when you get an answer you don't like try again, and again and again, and again, and again. That is a complete lack of respect for how constitutions work. And the fact that you would never be able to get a constitutional anti-death penalty amendment to pass should give all the people who talk about the changing moral consensus altering the constitution a slight pause (but it never seems to).

There were a large number of amendments up until the last few decades. The fact that we don't bother with them for important issues is our fault, not the Constitution's fault.

[Sebastian]

Nell: "@ThirdGorchBro:
I'm pointing to a crucial, horrible court decision that has changed the balance of power in this country over the last century-plus.

Dick Cheney and George W. Bush are pissing all over the Constitution. With the active collaboration of the Demoratic "leadership.""

This isn't a fault of the Constitution. In any system, if the checks and balances don't bother to do their jobs, things can fall apart. It is in fact much easier for that to happen in a parliamentary system where the executive leader is the head of the party in control of the legislature.

[Jeff]

There were a large number of amendments up until the last few decades.

I think the ERA killed any hope of Constitutional amendments. If we can't say that men and women should be equal, what hope is there for anything more wide-ranging, or controversial (The ERA should not have been controversial. At all.)

I'm not sure what killed the process. Was media conglomeration or corporate interfverence to blame? I don't think either was as prevelant as they are now. The "Moral Majority" was a big factor, but where did they get their power from?

The days of getting the Senate, the House and enough states to ratify even a proclamation in favor of Mother's Day seem to be gone (and in sight of the DOMA, that's possibly a good thing).

[Anarch]

In any system, if the checks and balances don't bother to do their jobs, things can fall apart.

I may not agree with Sebastian on much, but this is exactly right.

[Nell]

I'm not sure what killed the process.

Smart, effective right-wing grassroots organizing in legislative districts of state legislatures in "swing" states (ones that might have provided the final three or four ratifying votes). It was led by Phyllis Schlafly's Eagle Forum, rather than the Moral Majority.

[Nell]

@Sebastian: I never said nor implied that it was a fault of the Constitution. I should perhaps have made it clearer, but I was responding to ThirdGorchBro's accusation that commenters in this thread were "pissing all over the Constitution."

And Dick Cheney and George W. Bush are doing just that, independent of what the other two branches might or might not be doing to protect it. Congress is clearly the weak link.

[Neil the Ethical Werewolf]

a President just needs to authorize some program, and say that he thinks it is legal, and telecoms cannot be sued for going along with it, even if it violates the law.

If this is the right bill, I don't think that's strictly correct. The telcos are only immune to prosecution for screwups they made that were "authorized by the President during the period beginning on September 11, 2001, and ending on January 17, 2007."

So basically, you'd need to pass another telco immunity bill for the next president to use this power. It's still a bad precedent, but legislative precedent is worth a heck of a lot less than judicial precedent. The losses here don't seem that huge to me.

[DaveW]

Turbulence: >They weren't? I mean, some were clearly moral and intellectual giants, but you can't get the 3/5 rule without having a large fraction of the group that are, at some level not giants. Moreover, the slavery compromises embedded in the constitution were a complete failure: they were designed to keep the union cohesive, but we had a Civil War anyway.

Blame Eli Whitney, the cotton gin, and the rise of the Fire-eaters for that one. I think a fair number of the founders believed that slavery would eventually wither away under the constitutional regime they proposed - first the slave trade would eventually be abolished post 1808, then states would eventually get around to abolishing slavery on their own (perhaps grandfathering in the ownership of existing slaves) as the Northern states had been in the process of doing themselves. Alexander Stephen's "Cornerstone" speech refers to this belief, as he strove to justify the Confederacy:

The new constitution has put at rest, forever, all the agitating questions relating to our peculiar institution -- African slavery as it exists amongst us -- the proper status of the negro in our form of civilization. This was the immediate cause of the late rupture and present revolution. Jefferson in his forecast, had anticipated this, as the "rock upon which the old Union would split." He was right. What was conjecture with him, is now a realized fact. But whether he fully comprehended the great truth upon which that rock stood and stands, may be doubted. The prevailing ideas entertained by him and most of the leading statesmen at the time of the formation of the old constitution, were that the enslavement of the African was in violation of the laws of nature; that it was wrong in principle, socially, morally, and politically. It was an evil they knew not well how to deal with, but the general opinion of the men of that day was that, somehow or other in the order of Providence, the institution would be evanescent and pass away. This idea, though not incorporated in the constitution, was the prevailing idea at that time. The constitution, it is true, secured every essential guarantee to the institution while it should last, and hence no argument can be justly urged against the constitutional guarantees thus secured, because of the common sentiment of the day. Those ideas, however, were fundamentally wrong. They rested upon the assumption of the equality of races. This was an error. It was a sandy foundation, and the government built upon it fell when the "storm came and the wind blew."

It would have been easy for the country not to have survived the Civil War intact

>I don't think it did. The north won the war and then shortly thereafter, a white supremacist terrorist movement took control of the south, systematically preventing the free exercise of rights for millions of citizens. White supremacists controlled the south to the same degree they did under the CSA.

As bad as Jim Crow was, I don't think white supremacists had the same power under it as they did under slavery. They couldn't send slave catchers to track down those blacks who chose to move away to more congenial conditions up north and drag them back. They couldn't force the breakup of black families by selling some of their members down south. Their power was significantly constrained by having to operate outside the law in many cases.

[hilzoy]

DaveW: Actually, I've been reading this book, Slavery By Another Name, which argues that something a lot like slavery persisted until around WW2. Specifically: sheriffs would arrest African-Americans, often for either nothing or something like vagrancy; get a conviction from a convenient justice of the peace, assess fines and fees (for things like being arrested) that the prisoner could not pay, and then basically sell them to someone who could pay their bond.

It was profitable for the sheriffs, and of course for the people who got essentially slave labor. Because it was profitable, it made sense to do it whether or not the person arrested was actually guilty of anything.

The buyers ran farms, mines, turpentine operations, lumbering, you name it. They could do whatever they wanted to to the people they bought. A lot of those people died; since the buyers had basically no investment in them, they just got more, so whatever puny interest slaveholders had in maintaining the health of their slaves didn't exist.

And of course, they couldn't go anywhere.

It's really worth reading. (Well written, too.) One of those 'holy sh*t, I had no idea' books.

That said, the country did hang together after the civil war. It just wasn't nearly as good a country as it ought to have been.

[xoites]

Repeal FISA is up and running. Anyone who wants to is welcome to sign up and become a Poster on it. The purpose of the blog is to organize a drive to repeal the FISA laws and all laws that pardon or give immunity from prosecution anyone who has violated the Constitution during the Bush Administration.

That is why we want everyone to be able to Post so they can start a conversation about an idea they have to make this happen.

Stop on by and check it out. By all means leave a comment and sign up to blog with us as we figure out what needs to be done to return our Fourth Amendment Rights and our rule of law.

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