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I'm Weary of That Annoying FISA Debate

So weary, in fact, that I'm not going to vex both myself and any readers by dredging up the countless essays Andrew McCarthy, Glenn Greenwald, and others have written on the subject. Those interested in familiarizing themselves with the contours of the debate will know where to find them.

I am surfeited with the cloying antics of the actors in this kabuki theater because, to a certain degree, the entire debate is an exercise in missing the point. The old FISA act has become cumbersome owing to advances in communications technology, resulting, among other things, in the transcendent absurdity that the law technically requires a warrant for surveillance of a call placed by jihadist A in Pakistan to jihadist B in Lebanon, if for some reason the call happens to be routed through the United States. This, however, is a comparatively minor issue, and everyone concurs on the necessity of a legal remedy. The real action is taking place in the debates over the surveillance powers the executive branch and its apologists assert are necessary to the safety and security of the American people, and the integrity of intelligence gathering itself. The surveillance, it is said, must be warrantless, at least until it is expedient to secure ex post facto legitimation, and companies complicit in the violation of the existing law must be immunized for those actions. Yawn.

If one were to distill this controversy down to its essentials, the respective positions would hold that, on the one hand, telecommunications technology is now wireless, mobile, and disposable, and that legions of jihadists are even now among us, conspiring to bring about our demise, and, on the other, that the threat has been exaggerated, and that the powers asserted by the executive threaten constitutional protections and immunities. It would seem that, in response to this issue of great import, the establishment is inclined to cede such powers to the executive, although the obstreperous remain opposed.

As I wrote back in August:

We fight them over there, because we will, indeed, must, have them over here; not having them here would be akin to them failing to emulate us over there, and so they simply must become like us, so that they will not fight us. We will succeed because we must. A failure to pursue openness would be unthinkable, unforgivable. We must succeed, and they must change, because we will not change.

In other words, in response to the threat of Muslims plotting against us, the preference of the political establishment is to augment the power of the executive branch, essentially performing an explicit coronation of the president as the sovereign, who decides upon the exceptions to the ordinary protections and procedures of the Constitution, rather than to traduce the stultifying orthodoxy of openness and multiculturalism by halting Muslim immigration. No, no - they're going to be here, and indeed must be here, and in consequence we simply must accede to the wishes of the executive branch for surveillance powers that, once granted, will be more likely to suffer abuse than rescission.

In the end, that is why I've grown weary of an issue that once elicited some measure of passion. The establishment is unserious about this, except insofar as it facilitates the recovery of potentially abusive powers that Congress foreclosed upon in the wake of Nixon's excesses. The entire nation, it seems, is unserious.

Comments (12)

Bush has only nine months left to wear the crown and assault civil liberties and abuse powers foreclosed.
Thank God the reign of terror is almost over.

I'm assuming sarcasm on your part, John, in which case it is misplaced. I seem to recall Clinton being desirous of some of the same powers, which the Republicans contemplated with extreme discomfiture at the time. Bush is scarcely unique in this regard. I have written of potential abuses, the likelihood of abuses, and so forth, insofar as what has occurred to date has been comparatively minor (though I note that nothing whatsoever limits it save the good will of the executive, which is no republican principle I acknowledge); and if an assertion of executive authority to conduct warrantless surveillance is not a danger to a republic, even if off at the margins initially, than nothing is.

Reign of terror. Please. I said no such thing. This is 'merely' a crack in the foundation of republican governance, the exceptional circumstance elevated to a matter of routine.

Bush has only nine months left to wear the crown and assault civil liberties and abuse powers foreclosed.
Thank God the reign of terror is almost over.

Setting aside the civil liberties issue for the moment with respect to the FISA debate; couldn't the fact that we've not suffered a devestating terrorist attack since 9/11 be a direct result of Bush's policies, his supposed 'reign of terror'?

Oh -- and about the substance of Maximos' article -- it would've been more compelling without the rhetoric a la Mark Shea.

Oh -- and about the substance of Maximos' article -- it would've been more compelling without the rhetoric a la Mark Shea.


The aggregation of power in the executive branch is both symptom and substance of the diminution of republican governance; the assertions on the part of the Bush administration of various executive privileges, authorities that magically override statutory law, and its frequent use of signing statements, not to clarify, but to expressly overrule duly-enacted law, all represent attempts to elevate exceptional circumstances to the baseline of normality. The President is not "The Decider", at least not according to the Constitution and the separation of powers it enshrines.

Had I desired to utilize incendiary rhetoric, I'd have entitled the post "Hail Caesar! We Who Are About to Be Spied Upon Salute You!"

Just wanted to add some perspective to this. The FISA court is and always has been a rubber stamp, granting 99% of all administration requests. The President asked Congress for updates to the FISA law which they passed quickly and almost unanimously, and the President then praised them for giving him all the tools he needed to keep the country safe. The President then began to circumvent that law in such a way that the entire top level of DOJ threatened to resign, which in common parlance is committing a crime. The only actual reason for seeking retroactive immunity for the telecoms is to block judicial review. The strange notion being floated in various forums that the telecoms would or could refuse a legal wiretap ordered by the FISA courts is ridiculous. What they can and should do is refuse illegal wiretaps. It really is that simple.

Precisely. Which is why the assertions of executive privilege in this case are odd, to say the least. And the effort to foreclose upon the possibility of judicial oversight is creepy, IMO: not what republican governance looks like.

I was more so referring to this bit:

...to augment the power of the executive branch, essentially performing an explicit coronation of the president as the sovereign...

This, to me, had shades of Shea.

But, as I implied, the article, all in all, was a rather good one.

I just would've enjoyed it more without the seemingly biased tone.

...all represent attempts to elevate exceptional circumstances to the baseline of normality.

Not to go off-topic here, but just what is the state of normality given our circumstances? Are we not, in fact, in a state of war wherein we fight against an unconventional, insidiously cunning stateless enemy that has established several footholds within our homeland, as you rightfully alluded to in your article?

How can you, then, even speak of 'exceptional circumstances'?

Two planes filled with innocent American civilians were utilized as weapons of war by the terrorist fiends, which they used to level two of our greater American landmarks, also filled with innocent Americans.

Do you not thin that these 'exceptional circumstances' deserve 'exceptional treatment'?

I agree with your sentiments that it shouldn't go to the extent of the abuse of executive powers, but to speak of these times as if 9/11 had never happened, that there is actually a 'normality' to begin with as such were the days before 9/11 is a bit delusional to say the least, if not, reminiscing for days that will never return.

In that reference to the coronation of the executive, I was alluding to Schmitt's theory of sovereignty as the power to determine the exception; this is precisely what is at issue, namely, the asserted authority of the President to decide upon exceptions to the normal processes of Constitutional law, without being subject to oversight. On this point, I agree with Shea, if he's saying anything similar.

Absent that oversight, and absent a conditioning of the asserted powers which will delimit and circumscribe them, anything whatsoever can be swept up under the rubric of "national security" and placed beyond redress; if this hasn't yet transpired, it will, given time. That is the nature of these powers. That is what is meant by the elevation of what should be circumscribed 'emergency' powers to the level of normality. If certain surveillance powers are necessary given the threat of jihadist terrorism, then not only should this fact be statutorily stipulated (so that we cannot have 'national security' invoked as an excuse for anything whatsoever - have we learned nothing from Nixon?), but the process should be subject to judicial and Congressional (via the appropriate committees) oversight, to ensure that we don't have the equivalent of the netherworld into which innocent Afghan goat herders have been swept (People with no connection to terror have been swept into the security apparatus on evidence no stronger than that some people who wanted the $25K bounty have said that these unfortunates are terrorists.), and that abuses can be checked.

I note, as well, that this controversy only exists because of our fetish for open immigration, and our refusal to identify certain doctrines as implicated in the threats. End immigration from Muslim lands, proscribe the dissemination of the doctrines of jihad, sharia, and dhimmitude, and this controversy becomes much less salient: the intelligence community would have a definite focus, as opposed to a generic 'national security' rubric that an executive can make mean whatever he wishes.

Maximos, you may gather that I am quite in favor of the surveillance program, if not this will certify such favor. This is because I also favor the prevention of loss of American lives as against overwrought fears of the demise of the Republic and the total destruction of the Constitution. Not hat I consider your post overwrought, just a little out of proportion. Just a little.

This assault on civil liberties, for so it has been too often described, has been in place since at least late September 2001, not a coincidence I daresay. Members of both Congressional Intelligence Committee's and of both parties have been aware of it through the testimony of General Michael Haydn, then head of NSA, and despite his part in the dissolution of the Republic, since and by a large bi-partisan vote, promoted to of all things, head of the CIA.

But I'm sure you are aware of all this.
So, may I refer you to the FISA Court of Review's decision of !!/18/02 wherein they refer to " the President's inherent Constitutional authority to conduct warrantless surveillance", where also the y point to "FISA's general programmatic purpose to protect the nation against terrorist and espionage threats directed by foreign powers has been from it's outset distinguishable from "ordinary crime control"[their quotes, not mine] The court goes on,"After the events of 9/11 it's hard to imagine greater emergencies facing Americans than those faced on that date".

As the program has been in place for a number of years, during which time one must presume FISA judges were both awake and in the country, as the precedence already existed for warrantless surveillance, used in peacetime By both Carter and Clinton, as the threat to the Nation's legal and civil liberties have yet to materialize { can you, would you, care to provide a listing of specific breaches against citizens unrelated to the current program as we understand it], I feel obligated to suggest that perhaps your fears as well as your rhetoric are unnecessary.

I trust you will not take this as sarcasm.

"After the events of 9/11 it's hard to imagine greater emergencies facing Americans than those faced on that date".

To be fair, the intelligence failures of 9/11 were of interagency communication and analysis, not obtaining raw data.

can you, would you, care to provide a listing of specific breaches against citizens unrelated to the current program as we understand it

That is sort of the whole point of judicial review and the discovery process, to find out what breaches were committed. We know they were committed because Ashcroft and co. threatened to resign over it.

And the FISA Review Court is a rubberstamp, even more so than any Duma which has enkindled the misdirected ire of American Russophobes, meaning that its determinations are hardly dispositive. A statement on the part of one of the interested parties, to the effect that the program is constitutional, hardly removes the difficulties for the theory and practice of republicanism. That no (known) problems have yet materialized (beyond the violations of the existing statutory law) is due solely to the good will of the executive; structurally speaking, that is the slenderest and sharpest of reeds, guaranteed to eventually pierce the palm.

Maximos & Step2, with resignation, disappointment, but with the observation of weakness in both posts, noted and time to move on.

"rubber stamp, Duma, pierce the palm", blah!

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