'Intelligent discontent is the mainspring of civilization.' -- Eugene V. Debs

Wednesday, July 16, 2008

A Conflicted Leftist on FISA 

Based upon my cursory observations, FISA has gotten significantly more attention on liberal blogs like DailyKos and firedoglake than the economic consequences of the housing bubble and the ensuing credit crunch. I've seen numerous posts calling people to the barricades to prevent Congress from granting telecommunications companies immunity from prosecution for facilitating illegal Bush wiretaps, but few exhorting people to pressure it to provide relief to homeowners. They recognize the issue, but can't seem to develop a coherent response, especially in the middle of a presidential campaign. After all, you don't want to get too far to the left of the candidate.

Apparently, it's a lot easier for liberals to defend civil liberties than to challenge the underlying neoliberal principles of the US economy. For me, it's the opposite. The late Steve Gilliard was an admirable exception to the rule. I've posted frequently on the housing bubble and the credit crunch, but very little about the FISA legislation that Bush signed the other day. Why? Well, first of all, high traffic sites like DailyKos and firedoglake, not to mention the dogged Glenn Greenwald and libertarians at antiwar.com, effectively politicized the issue. They deserve praise for their efforts, which are ongoing, even if they did not kill the bill in Congress. There's nothing for me to add to what they have done, and I generally use what I call this boutique blog to emphasize subjects that are otherwise deemphasized or ignored.

Second, I see the issue differently than the liberal/libertarian coalition that organized around defeating telecom immunity. They expressed dismay at the extent of the illegal surveillance of electronic communications, while I thought it was entirely predictable. A cursory examination of US history reveals numerous violations of civil liberties, such as the suspension of habeas corpus during the Civil War, the Palmer raids of 1919-1920, the internment of Japanese Americans during World War II and COINTELPRO during the 1960s and 1970s. They frequently invoked the sanctity of the Constitution and its prohibition against unlawful search and seizure without acknowledging the elite have ignored them whenever it has served their interests to do so.

Furthermore, I never encountered any recognition that the constitutional prohibition against unlawful search and seizure has already been nearly eradicated when it comes to activities of law enforcement in low income communities and communities of color. It's called the War on Drugs, and liberals have had less and less to say about it with the passage of time. Libertarians, to their credit, continue to advocate for the legalization of drugs through explicit reference to the authoritarian tactics required to enforce current drug laws. In other words, one got the quesy feeling that liberals felt that FISA was so important because it empowered the government to subject them to surveillance, not just those sleazebags across the tracks in the 'hood. Explain FISA to an African American from Oakland or a low income family in a housing project, and you'd probably get responses ranging from laughter to incomprehension.

Neither liberals nor libertarians understood that there were serious class and ideological issues associated with FISA. The problem was not so much the degradation of the values of the Constitution, one of those abstract notions that only really motivate people who are otherwise financially secure, but, rather, the fact that it legalizes a surveillance practice that the government utilizes without hesitation against threatening social movements. Examples are too numerous to fully summarize, but obvious ones include Martin Luther King, the Black Panthers and CISPES, a group known in the 1980s for its exposure of US support for death squads in Central America. Accordingly, the notion that we would protect our civil liberties by defeating telecom immunity was not very persuasive to me.

After all, the Bush administration briefed the bipartisan leadership of Congress about its illegal wiretap program in 2002 and 2003, and they did nothing. So, why would we expect them to do anything different in the future? I guess the response is that telecom immunity now forecloses judicial action, but how effective is it anyway? The courts had not taken any action to stop the practice prior to the passage of FISA in its current form with telecom immunity. The judiciary is a slow moving behemoth, just look at how long it has taken cases associated with the human rights violations of Guantanamo to work their way through the system, despite the obvious deprivations of liberty and physical abuse involved. The judiciary tends to ratify existing social norms after the fact, even the famous civil rights decisions of the 1950s and 1960s can be seen in this light, instead of pushing through immediate changes against the passivity of the political system.

Of course, there is also the obvious criticism that the existing FISA system, pre-immunity, was bad enough, anyway. It was reported that the FISA court was pretty much a rubber stamp, approving all but a few emergency wiretap requests. The emphasis upon the evils of telecom immunity was therefore a reformist approach that ensured that the overall system of surveillance will remain intact, enhanced through watered down requirements for the issuance of warrants, available for activation against any perceived political threat. Some newspaper will then tell us what happened several years later after receiving records through a Freedom of Information Act request.

In effect, we lost before the probability of telecom immunity emerged. Chris Hedges explained why the passage of the FISA bill is dangerous for reasons that go far beyond telecom immunity:

The new FISA Amendments Act nearly eviscerates oversight of government surveillance. It allows the Foreign Intelligence Surveillance Court to review only general procedures for spying rather than individual warrants. The court will not be told specifics about who will be wiretapped, which means the law provides woefully inadequate safeguards to protect innocent people whose communications are caught up in the government's dragnet surveillance program.

The law, passed under the guise of national security, ostensibly targets people outside the country. There is no question, however, that it will ensnare many communications between Americans and those overseas. Those communications can be stored indefinitely and disseminated, not just to the U.S. government but to other governments.

This law will cripple the work of those of us who as reporters communicate regularly with people overseas, especially those in the Middle East. It will intimidate dissidents, human rights activists and courageous officials who seek to expose the lies of our government or governments allied with ours. It will hang like the sword of Damocles over all who dare to defy the official versions of events. It leaves open the possibility of retribution and invites the potential for abuse by those whose concern is not with national security but with the consolidation of their own power.

Hedges also cites an example as to how it has already impaired his ability to work as a journalist:

The reach of such surveillance has already hampered my work. I was once told about a showdown between a U.S. warship and the Iranian navy that had the potential to escalate into a military conflict. I contacted someone who was on the ship at the time of the alleged incident and who reportedly had photos. His first question was whether my phone and e-mails were being monitored.

What could I say? How could I know? I offered to travel to see him but, frightened of retribution, he refused. I do not know if the man's story is true. I only know that the fear of surveillance made it impossible for me to determine its veracity. Under this law, all those who hold information that could embarrass and expose the lies of those in power will have similar fears. Confidentiality, and the understanding that as a reporter I will honor this confidentiality, permits a free press to function. Take it away and a free press withers and dies.

This is what we should have emphasized in the FISA fight, and some no doubt did, but the message did not take hold. But, with all of that, the fight over telecom immunity was a crucial step in the right direction. If there is no judicial remedy for this illegal conduct, we will never know the extent of the Bush surveillance program. Liberals hammered this point home repeatedly, and it is valid. We will never know the extent of the surveillance, and even more worrisome, the extent to which the information received was inappropriately used. It may not have enabled us to stop these practices, but it did present the prospect of providing us with essential knowledge as to what actually happened. Such exposure could have created a political opportunity to challenge FISA across the board.

It is only a positive step, however, if liberals and libertarians continue to press these issues, and find a way to explain them to a broader public successfully. Liberals will have to demonstrate that they care about these issues as much when there is a Democratic president instead of a Republican one. Meanwhile, there are all those people being driven out of their homes and to the margins of subsistence, and, for them, FISA is merely an acronym that isn't going to feed them or keep a roof over their head. It looks like it is about to get bad enough that all of us can't avoid addressing it front and center.

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