The revamped Foreign Intelligence Surveillance Act passed the Senate today, 69 to 28. The yes vote included 47 Republicans (minus John McCain who was out on the trail), and 22 Democrats including Barack Obama.
FISA is designed to protect the civil liberties of Americans in the United States, while allowing America's intelligence services broad powers to monitor communications abroad. No one in Congress seems to doubt that our intelligence services should be able to listen in freely when, say, a member of Hezbollah in Lebanon calls someone in Iran. There is no role for judges in that case.
But what happens when one of the two parties calls someone in Chicago? FISA creates a special court to issue warrants in such a case. I gather that such warrants can be issued retroactively, so the spooks don't have to stop listening to what may be a party to the next terrorist plot while someone rounds up a judge. The new version of FISA tightens some of the restrictions on such surveillance, for example prohibiting "so-called "reverse targeting" -- using the authority to intercept foreign communications without an individual warrant if the real purpose is to spy on a "particular, known person" in this country." All of that seems reasonable to me. It is true that the new FISA, like the old one, allows the issue of warrants without cause, which is to say without prior evidence of wrong-doing. But that is the nature of intelligence gathering directed against our enemies abroad. The purpose is not to make cases, but to prevent mischief.
The sticky issue was retroactive immunity for telecom firms that aided the Bush Administration in the days following 9/11. I think this was vital to the purposes of the bill. Do we really want companies to withhold information that might help our security services prevent the next 9/11 for fear that they might be sued later? It is not the job of Verizon to enforce the fourth amendment.
There are obviously two key national interests involved here. One is to protect the privacy of American citizens. The other is to keep terrorists from blowing us out of our socks. Intelligence powers can obviously be abused. If the Bush administration used such powers to spy on the Obama Organization, or the ACLU, or Greenpeace, that would be such an abuse. I have not heard a shred of evidence to indicate such abuse. Bush & Company probably think there is no reason to be concerned about civil liberties, but someone needs to be concerned. FISA's Democratic critics are concerned about that, but don't seem to be even a little concerned about the need to keep an eye on the bad guys. The only bad guys they seem to notice are the Bushies. That, I suppose, is why you need two parties. The bill was a compromise. It is probably true that Bush got more than his opponents did.
But I issue again the warning I have issued before: if something happens that really makes all Americans fear for their lives and futures, they won't care much about thereafter about fourth amendment protections. If you care about civil liberties, you have to make sure that the other shoe doesn't drop.
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