On August 5, President George W. Bush signed into law legislation that amended the Foreign Intelligence Surveillance Act of 1978 (FISA). This new legislation authorises the electronic surveillance of international telephone conversations and e-mails, even if one of the participants is an American citizen on American soil, as long as the intercept is undertaken for foreign intelligence purposes and is "directed at a person reasonably believed to be located outside of the United States."
The law requires neither a search warrant nor probable cause to believe that the target of the investigation is a terrorist or even an associate of terrorists. In effect, this legislation ratifies the secret surveillance programme that Mr. Bush unlawfully implemented in 2002. It could not have been enacted without the support of a significant number of Democratic senators and congressman.
Many of the Democrats who voted for the law did so despite their prior criticisms of the Bush surveillance programme, despite the consensus view among legal scholars that that programme was unlawful and despite a federal court ruling declaring it so. How, then, could these liberty-loving Democrats support this legislation?
Most of the argument about the legality of the secret Bush programme focused on the fact that it violated FISA. Amending FISA makes that objection disappear. Of course, this does not excuse the prior legal violation, but it does now make lawful what previously was prohibited.
The real reason these Democrats supported the legislation, however, is that the president out-maneuvered them politically. In effect, Mr Bush cast the issue as follows: "If you deny me he authority to use this form of surveillance and there is then an attack on the United States, it is on your heads." The Democrats caved in because they were afraid to defend individual liberties in the face of the president's browbeating. They should be ashamed.
What does this tell us about the state of civil liberties in the U.S.? Not as much as you might think. The fact is that fear-mongering has played a critical role in every major wartime episode in American history. In 1798, the Federalists used a largely trumped-up threat of French invasion to enact the Sedition Act of 1798, which made it a crime for any person to criticize the president, the Congress, or the government. During the civil war, President Lincoln suspended the writ of habeas corpus on eight separate occasions and Congress rushed headlong to approved his actions.
During the first world war, President Wilson stampeded Congress into enacting the Sedition Act of 1918, which made it a crime for any person to criticize the war, the draft, the military, the flag, the uniform, or the government. During the second world war, Congress blithely ratified President Roosevelt's internment of almost 120,000 individuals of Japanese descent, two-thirds of whom were American citizens. And at the height of the McCarthy era during the cold war, a frantic Congress hastily enacted the McCarran Act of 1950, one of the most grievous assaults on freedom of speech and association in American history.
So, we should consider recent events in context. The legislation amending FISA is unwarranted, reckless and possibly unconstitutional. Nonetheless, the overall state of civil liberties in the U.S., viewed in historical perspective, is surprisingly strong. There are no internment camps for American Muslims, no suspensions of habeas corpus for American citizens, no laws prohibiting criticism of the war in Iraq. This might not seem like much, but in light of past episodes, the intrusions on civil liberties since 9/11 have been relatively modest.
This is so for two reasons: first, Americans have come to value civil liberties as part of their romance with America. Although we are still too willing to make unwise compromises of individual liberties in order to protect (or try to protect) national security, we are much more sensitive to these issues than we have ever been.
Second, groups like the American Civil Liberties Union have played a critical role in setting the terms of the debate. By objecting strenuously even to relatively modest limitations, they have prevented the government from proposing more drastic restrictions. Because we are debating whether the government can intercept international telephone calls, we do not have to debate whether it can prohibit Americans from criticizing the president. Where battle lines are drawn is critical.
This post initially appeared as an op-ed in the Financial Times.
Sure, our civil liberties have ebbed and flowed over time. And, yes, maybe this is just another ebb that will some day flow back to us. But, might future historians look back on this as the moment when the tide turned? Might this be the tipping point where fear and paranoia cause Americans to destroy the freedoms that their ancestors fought on battlefields and in courtrooms to achieve?
It's all too recent to know. So, I think the smart thing to do is always be vigilant, always be on guard. You're right about ACLU watching out for us. Bless them.
I can't answer for all Americans, but LGBT American's civil rights were put in peril, (neither Party or the Supreme Court will protect us,) we've already armed ourselves, since the build up to the 2004 election where closeted gays Karl Rove and Ken Mehlman used hatred of gays to re-elect Bush.
So good luck with that whole ignoring your civil liberties...that's certainly one way to BEHAVE.
What part of "glass half full" Pollyanna-denial- syndrome-Ivory-Tower do you live in?
Let's just see how the Federal Government handles all those distraught miner's families in Utah, shall we?
Let's just see how far the "free market" allows "free speech".
Less philosophizin' - more reality checks.
Abraham Lincoln and Woodrow Wilson weren't tapping fiber-optic lines to monitor phone calls, internet use, and email. They didn't have spy satellites capable of reading license plate numbers, which they decided to point at American soil. They didn't have electronic bank records, drivers license data, credit card transactions, airline passenger data, and medical records to peruse.
And most of all--they didn't have Dick Cheney and Alberto Gonzales doing all of the above for POLITICAL purposes.
This mentality is very dangerous as it allows us to be seduced into little by little surrendering the rights that were paid for with so many lives.
"Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety." - Benjamin Franklin, 1759
And while that part of the Democratic constituency has always been the leading edge guard and watchdog, of our Civil Liberties, they are presently being baited by the Bush administration, in an attempt to fracture the Democrats; if not just in Congress, then nationally, as a constituency.
Because it is the Bush administration themselves, who make these overblown thrusts at our Civil Liberties, in order to provoke those parries we see made in response, by those whom I just characterized, as being hyper-conscious and overly sensitive, about Civil Liberties.
It's called the politics of dividing and conquering; it's being called upon at this time, because presently there is more than just a Democratic majority in Congress: There is a Democratic majority among the American People... and it is sizable.
And this type of politics has always worked well... and it may work now.
Because with every little new appearence the Bush administration makes, of some perceived violation of someone's Civil Liberties (a recent example being the use of satellites, in domestic surveillance), they pit that hyper-conscious overly sensitive leading edge guard and watchdog of our Civil Liberties, against the balance of a Democratic majority in Congress, and in America presently...
And try and make that Democratic majority in Congress, and among the American People, look as though we were unconcerned with the awful prospect of another terror attack...
...and unaware of the importance of domestic surveillance, as a tool to perhaps prevent such an attack...
They pit Democrat against Democrat in this matter, the Bush administration does, in it's attempt to divide and conquer that Democratic majority in Congress and among the American people...
And it might work, but it might not...
Only time will tell; as it is time that has told us, of how so many times this kind of politics has been used against the American People...
Divided so much, but not yet conquered.
"Hyper-conscious, overly sensitive"
You use that term twice in your post in what I consider to be a condescending fashion towards decent patriotic Americans/progressives.
You perceive this issue to be all about electoral politics and the big race in 08.
Seeing this solely as a Republican tactic to divide and conquer Democrats is not how most Americans look at it.
We don't see everything through the prism of partisan politics and election cycles.
Some of us just look at this spying shit and say...Bush is a treasonous fascist who should be impeached.....and then we say WOW!!!! I can't believe my Democratic party sold me down the river to this criminal in the White House for no good reason!!!!!!!!
That justifiable outrage of course causes the party establishment DLC types to get very worried about losing votes, hence the need to frame the discussion inside the box of electoral politics.
Wake up Dem2020 and understand that if our party did the right thing in the first place by protecting Americans (as per the bargain we made in Nov 06) from Bush, there would be no need to "manage" the fallout.
Any thoughts on the brilliant plan by David Sirota, I mention in my above comment?
If Democrats follow Sirota's plan, there would be NO need to worry about losing votes due to being divided and conquered.
Fight the good fight Democrats, and the votes will follow.
Peace.
There are two endless "wars" that are undermining our constitutional rights-the war on terrorism and the war on drugs. In effect, these are wars on the poor and working classes.
Because of the advanced spying techniques that our government now employs, our right to privacy is gone.
I am tired of people bashing lawyers. If it wasn't for the great lawyers at the ACLU, where would we be? I will say it again, please support the ACLU with a contribution each month.
What's that about the gov employing spying techniques, similarly to the satellite Google uses that can read license plates, see who's knocking on your door, or swimming in the backyazrd pool.......heavens.
The state of civil liberties is not to be determined like mundane issues. Ask pre-Nazi germans who wrote soothing articles.
It is more instructive to liken it to boating near the edge of Niagra Falls.
Direction is the main ingredient in testing the "state of affairs".
And we are heading in the wrong direction sir.
In the week that this occurred the nation was more aware of the crimes, lies and slime factor of Alberto Gonzales than ever before.
It would have been easy for Democrats to ride this wave and laugh at the absurd request of Bush for more power to spy. It would have been easy to tell the American people that Democrats were busy deciding about impeachment for Bush's FISA law abuses.
All the blather about how only a few Democrats voted for the law is a distraction. A distraction from the FACT that it was Democrats who brought the bill to the floor in the first place, when they did NOT have to.
They were not out-maneuvered, they were co-operative.
The abuse of the FISA law was one of the main reasons to impeach the criminal Bush. This law/sellout by Democrats conveniently killed that off.
Fortunately David Sirota wrote a great article on how to fix this mess now. This mess can still be fixed, all we need is one Senator with some guts.....Obama? Clinton? Edwards? Anyone?
http://www.openleft.com/showDiary.do?diaryId=635
I have no doubt that if Bill Clinton were president, the nonsense you would be spouting about his danger to the Union would be similar in tone to what you are complaining about here, but with resort to something other than civil rights as the touchstone principle. You would and have similarly fearmongered over Bill's morality (or am I confusing you with another similar writer?, if I am I apologize).
You state that "the bending of FISA was valuable to fighting imbedded dangerous zealists." That's Bullshi+ and you know it. Not one real plot has been halted which could not have been halted by doing legal police work. Not one plot came to light which could have worked.
We were lied to to allow cover to create a unitary executive power in this once great nation, to pretend that we are at war with a religion, and that this nation is ONLY a Christian nation. It is not the "dem leadership" which misled us, until they refused to stop this war when they had the chance, and refuse to consider impeachment for high crimes and misdemeanors. It was the President and the White House which misled us (and continues to mislead us), It was their "leadership" which failed to capture Osama AND failed to prosecute the War in Iraq properly. When the CEO of a corporation consistently lies to the board, it is up to the board to replace him. Congress has allowed this clown too long to lie, mislead and divide us, so we need to fix that now too.
Blame that on the "dems" who were out of power until the last election, or say that complaints about this consistent and overreaching abuse of power is selfish and whining?
You're words are what is incredible, CB.
You obviously do not know where I come from....my position is that the POTUS has not lied, misled or used hyperbole with us. And, I know POTUS does not trust the congress, with ample cause. With a first hand knowledge of the military and politics I have a fair idea what is happening in the District of Columbia. So I believe the democratic leadership has misrepresented all facts about the Iraq War, and continues to act in such a squalid manner to obtain power. I also believe the democrats will have the presidency and congress control after '08. Then we shall see how President Clinton, Senator Reid and Congresswoman Pelosi handle Iran......a very dangerous nation.
The information is right there on the Internet, so let me just point you in the right direction: go and look at your Congressmen's and Senators' and Presidents' and even your Supreme Court Justices' "other lives."
Not their public lives; their private ones.
Look at what corporate boards they sit on, or control. Notice how many of those corporations are providers to the Government, and therefore recipients of the nearly $1 trillion that has been "spent on 'the war.'" Notice how many of them are in the energy business ... tripling their profits by tripling your gasoline-price. Notice how many of them are in health-care, plastering your television with "ask your doctor" and plastering your neighborhoods with an amazing number of hospitals and "imaging centers" (and even "sleep-disorder centers").
They're making money. Uncomprehensible amounts of money.
And they're casting their votes to get it.
The result is very familiar to a student of world history; it's called "fascism." And we are in it.
Not only have these people pocketed a substantial sum of that "$1 trillion," the prize that they are after .. the oil in Iraq .. is worth more than 12 times more.
As long as there is "somebody else to blame," there is more blood to be sucked from this husk of what once was a great country. But in the end, these men and women owe no allegiance to any country. Their wealth is "multi-national" and the great source of their strength is war, bloody war.
CHARLESTON, W.Va. — A couple arrested at a rally after refusing to cover T-shirts that bore anti-President Bush slogans settled their lawsuit against the federal government for $80,000, the American Civil Liberties Union announced Thursday.
Nicole and Jeffery Rank of Corpus Christi, Texas, were handcuffed and removed from the July 4, 2004, rally at the state Capitol, where Bush gave a speech. A judge dismissed trespassing charges against them, and an order closing the case was filed Thursday in U.S. District Court in Charleston.
Are you saying not to over-dramatize wiretaps?
Presumption of a permanent state of war against an ill-defined enemy ideology,
widespread anti-democratic government secrecy, unilateral abrogation of international
laws and treaties, approval of torture, abrogation of habeaus corpus, an expansive
privatized mercenary army, and the recent massive transfer of wealth and power to oil
barons and arms merchants.
Assertion of expanded Presidential powers, including the National Guard, during a
self-proclaimed Presidential emergency.
A growing stream of executive Presidential orders authorizing such as the seizure of property from those who may pose a “risk” to various government policies, even indirectly,
unintentionally, and non-violently.
Evidence of past recent electoral fraud, and greatly increased potentiality for future fraud.
You may be right, wiretaps may be the least of our worries.
“pre-emptive” war away from waving our civil liberties good-bye under a proclamation of
martial law?
OH REALLY...And how would we know this?
I find the idea of high definition in real time spy satellites blanketing the United States that can see through walls and even find objects in bunkers to be very threatening not only to my liberty but also to my state of mind.
"These satellites will cover during the course of their orbits the entire United States. They will be operating 24 hours a day and using infrared cameras at night."http://www.washingtonpost.com/wp-dyn/content/article/2007/08/15/AR2007081502430.html
Claiming that this is all because of 9/11 is bull.This is about spying on the American people period. After all they had all the information they needed before 9/11 to stop what was going to happen including one of the suppossed crew living with an FBI agent. I agree there is a lack of intelligence but it's the kind that comes with common sense.