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.