August 7, 2007

Bad Compromise, Bad Law

At least temporarily, the President is getting his way with domestic wiretapping after all. An astonishingly passive Congress passed a "temporary" revision to the Foreign Intelligence Surveillance Act and gave the power to authorize monitoring of communications between the U.S. and other countries in the hands of the Director of National Intelligence and the Attorney General, rather than with the Foreign Intelligence Surveillance Court. The fact that the law was proposed and passed just before Congress' summer recess suggests some clever legislative maneuvering by the advocates of the bill -- and some astonishing spinelessness by the rest of Congress, who seem to value their vacations and fund-raising times more than they do the Constitution they are sworn to uphold and protect.

According to the linked CNN article, civil liberties advocates claim this represents a "vast expansion of government power." That's not true. The government had the power to monitor such communications before this change in the law. What's changed is who in the government got to make the decision -- that authority has moved from the judicial branch to the executive branch. That's the basis for my objection to this "temporary" bill.

The "temporary" bill divides communications into three categories: 1. U.S. citizen to U.S. citizen, which requires (as it always did) a search warrant. 2. U.S. citizen to foreign citizen, which now requires DNI/AG approval if the "target" of the search is the foreign national, and which requires a judicial warrant if the "target" of the search is the U.S. citizen. 3. Foreign to foreign communications, which may be monitored without prior review by anyone (as they always did; we are not in the business of safeguarding the civil liberties of other nations and their citizens). It's the middle class -- U.S. to foreign communications -- that is really changed by this new law.

I can see how this would seem a reasonable compromise to politicians, but that's only from the point of view of reaching a settlement of a disputed issue given the starting points of the parties to the dispute. The problem is that the position of one of the parties was unreasonable to begin with -- namely, the administration's position that getting a warrant to monitor a communication to which a citizen is party was unreasonable and cumbersome under the then-extant wording of FISA. The government had the ability to immediately monitor and then apply for a warrant up to 72 hours afterwards, and there were (and still are) lawyers on staff whose job consists solely of applying for those warrants. What's more, the U.S. citizen has a reasonable expectation of privacy during those communications, and that citizen's expectations were not made part of this compromise. This doesn't strike me as a good compromise and it certainly doesn't strike me as a good law.

As I've expounded on before, the Constitution sets up a separation of powers for this sort of thing for a very good reason -- we distrust, and rightly so, a concentration of power in the hands of any single branch of government and particularly in the hands of a few individuals. This "temporary" measure gives the executive branch sole unchecked and unmonitored discretion to abrogate an individual U.S. citizen's entirely reasonable expectations of privacy in communications with friends and relatives abroad. Whether "temporary" or not, this is a violation of your Constitutional rights, and you should be upset about it.

I put the word "temporary" in quotes because, in theory, this is only a four-month stopgap to permit continued intelligence-gathering after a sunset provision in the prior version of FISA had expired. However, these kinds of "temporary" measures have a way of becoming "interim" and then "experimental" or "feasibility-study", and then eventually become permanent. When the republic does not come to a screeching, smoke-rising-from-the-tires halt because of this new law within four months, the President and his men will be able to say, "See, this wasn't such a big threat to civil liberties after all," and bypass the more accurate argument that this represents an erosion rather than a sudden destruction of the guarantees of our freedom.

As I have found necessary to do in the past, I clarify my position: I don't object to the fact of the monitoring. If there is reason to believe that someone is up to no good, I want, expect, and demand that the government to use all of its considerable powers to learn more and protect the country and the people in it (including me). I want the government to wiretap the bad guys and I want the government to act on information it learns during such wiretaps. A key phrase that some overlook, though: If there is reason to believe that this is a bad guy. I'm not a bad guy and there is no reason whatsoever to think that I am. Therefore, the government has no business reading my e-mails or listening to my phone calls.

But at this point, all we can do is hope that some members of Congress are able to somehow locate and re-insert their vertebrae in the next 120 days and start doing their jobs.

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