The most surreal part of the debate over civil liberties in American politics is how legalistic it is. Nobody, apart from the ACLU and similar groups, questions the President’s right to listen on anyone’s conversations, as long as he gets a secret court to rubber-stamp everything. Apparently, Bush’s refusal to have the secret court rubber-stamp eavesdropping on people is worse than the fact that he eavesdrops on people.
Now that Arlen Specter is trying to legalize Bush’s eavesdropping ex facto (via Echidne), the predictable netroot reaction, at least if Glenn Greenwald is any indication of a general trend, is to write a process story.
From what I can discern, the Senate Judiciary Committee essentially passed on responsibility to the full Senate to save the administration by enacting the Specter FISA bill, while simultaneously blocking Democratic efforts on the Committee to dilute the most offensive parts of the Specter bill. Democrats have been reluctant to pay much attention to the Specter bill, but the way in which it (a) abolishes all limits on the President’s eavesdropping powers; (b) embraces the Bush administration’s most radical executive power theories; and (c) virtually destroys the ability to obtain judicial review for the President’s lawbreaking, renders it a bill that is at least as pernicious as anything else that is pending. It deserves full-scale attention and opposition.
UPDATE: This article from The New York Times doesn’t add much information but it does confirm the explanation I provided above: “Indeed, the Judiciary Committee voted today to send other provisions to the Senate floor for debate, even though they are not wholly compatible with the Specter-White House agreement.” The Times also says that “many Democrats are sure to try to derail or amend the measure when the Senate takes it up,” but the only way to really put a stop to this travesty is with a filibuster (assuming, as is wise, that House Republicans cease being a real impediment).
Democrats should have no fear of that — most polls show that Americans want limits and oversight on this administration, and it is not difficult finally to make the case that this debate is not about whether there will be aggressive eavesdropping on terrorists (since FISA and every other proposal allows that), but whether the Bush administration will be able to eavesdrop on Americans in secrecy and with no judicial oversight, precisely the situation that brought us decades of severe eavesdropping abuses by presidents in both parties.
I’m not sure who is being more obtuse here, Greenwald or the forces within the Democratic Party that compelled him to write such a thing. I don’t think Feingold gave a damn about what the polls said when he voted against the Patriot Act; the whole idea of civil liberties is that you’re supposed to uphold them even when they’re not popular.
As far as I can see, nobody’s asking the question, “Are secret courts any more trustworthy than Presidents?”. The percentage of FISA requests that are denied is a rounding error, which suggests that it’s little more than a rubber stamp. Concentrating on the fact that Bush doesn’t even submit to that is great if you want to beat your chest with how stupid Bush is, but not if you want to be sure the government doesn’t spy on you.
Good old-fashioned police work doesn’t need anything like FISA to work. Britain foiled a terrorist attack a month ago without the help of any secret court; all of its wiretaps were submitted to regular courts, just like requests for wiretaps for anti-crime use.
This demonstrates a general rule: egregious practices, such as civil liberties violations, don’t protect anyone. Treating every person of the wrong skin color as a criminal won’t prevent crime; installing telescreens in every home won’t prevent terrorism; making people’s flight experience a living hell won’t prevent airline bombings.
Another general rule is that poll-driven politics makes you look like a wimp, and while it’s understandable in a politician because that’s what politicians do, it’s inexcusable in an activist. Saying, “Polls show most Americans…” gives an annoying impression that you think it’s okay to gut the entire world’s civil liberties if 51% agree.
The same principle applies to other underwhelming arguments for civil liberties, such as Lindsay’s point that torture hurts American national security. Of all the things in the world that torture hurts – innocent individuals, humanity, modern civilization, individuals who have to fear torture, anti-terrorism efforts – national security is the most trivial. Torture is an excessive practice that, just as the law of egregious violations predicts, is as effective as Jack Bauer is a real person. Saying it hurts American credibility, which hit rock bottom more than three years ago anyway, makes no sense.
Right now, to listen to American politicians and to read American bloggers, the debate has two camps. One thinks eavesdropping is acceptable when done with a secret court’s approval, on a non-citizen, or on international communication. The other thinks it’s always acceptable. The difference between the two is tiny: Americans are 4.5% of the world’s population, and FISA denies 0.027% of all requests and modifies 1% more.
The medieval Catholic philosophers debated how many angels could dance on a pin’s head. The modern American pundits debate the legalese of spying on everyone versus 799,999 people out of 800,000.
Abstract Nonsense 
Torture is also ineffective in obtaining information. All too often, the victim tells the inflicter what the latter wants to hear, which is ofter bulls***. It is only effective in extracting false confessions (just ask John McCain).
You’re overlooking the central value of judicial oversight. Even where a court is a rubber-stamping court (as the FISA court is), substantial amounts of abuse will be prevented if the only eavesdropping that can be done by the Executive is eavesdropping where a set of independent judicial eyes are watching. If nobody is watching them (as will be the case under the Specter bill), they can eavesdrop on anyone they want, from domestic political opponents to journalists and everyone in between. But if they know they have to tell a court about every person on whom they are eavesdropping and make a viable argument that there is a national security justification for doing so, the scope of the abuse will be much less.
The value of the FISA court isn’t in the approval/warrant-issuance aspect of it, but in the oversight aspect – that the Executive knows it can’t eavesdrop without judges over whom the President has no control knowing in each and evey instance. The fact that it’s a rubber-stamp court doesn’t diminish that value. Even then, the difference between eavesdropping only with rubber-stamping judicial oversight and eavesdropping with no judicial overight is fundamental (they’re not, for instance, going to go tell a FISA judge that want to eavesdrop on John Kerry or Dana Priest, but without oversight, nothing will stop them from doing that).
As for citing polls, you may not have noticed but Democrats tend to run away from unpopular positions. Therefore, if one wants to spur Democrats into actual action and achieve results (i.e., stopping the pernicious Specter bill) — as opposed to sitting around pompously though inconsequentially pontifficating and feeling pure — one must convince them that taking a certain position will not harm them politically. Pollls are one instrument — an important instrument — for persuading them of that.
The fact that Democratic Beltway politicians care about polls and will only protect civil liberties if the polls show they can do so safely does not mean – as you illogically suggest- that anyone who uses polls to convince them to act (e.g., me) is similarly poll-dependent and believes that civil liberties should be protected only where a majority agree.
Put another way, if you believe that X is relevant to a particular issue, the fact that I use X to persuade you does not mean that I think X is relevant.
Well, as I said, I’m not sure whether the problem is with you or with the people you have to convince. Of course Democrats run away from anything that might possibly be unpopular (if it had just been “unpopular,” they’d have uniformly come out for single-sex civil unions and amnesty for illegal immigrants). That’s what I castigate them for.
It’s important for liberal activists to come out for things that are left of mainstream once in a while, because that helps shift the mainstream to the left: for example, the push for gay marriage helped other gay rights issues, like adoption, gays in the military, and civil unions, become mainstream positions. When you focus on legal minutiae rather than the moral argument for civil liberties, or even the Constitutional argument, you concede the point that all Congress has to do is formally give Bush more power. With a Democratic Congress, or a Democratic Senate minority sufficiently vertebrate to filibuster, it might work; however, neither is the case right now.
The judges of the FISA court are almost certainly independent enough not to permit spying on mainstream political opponents, that’s true. But why would Bush have wanted to spy on Kerry in 2004? If Kerry had found out, which he probably would’ve given the number of people within the executive who would’ve had to be in the know, it would’ve killed the Bush campaign. There was no reason for Bush to do anything that risky.
On the other hand, spying on anti-war activists is something judges appointed by conservative politicians (and in the US today, both parties are conservative) will have little trouble condoning. FISA won’t protect the Martin Luther Kings of the world; an exemption for non-citizens won’t prevent the US and the UK from spying on each other’s citizens for each other’s benefit the way they did in the 1990s.
I really like what you’ve acquired here, certainly like what you are saying and the way in which you say it. You make it enjoyable and you still care for to keep it wise. I can’t wait to read far more from you.