Last week the New York Times reported that it appeared the Democrats were willing to roll over yet again on FISA, just like they did back in August. The central reason cited in the NYT article for the Dems’ willingness to sacrifice civil liberties is that

“they remain nervous that they will be called soft on terrorism if they insist on strict curbs on gathering intelligence…”

That’s total b.s. The “strict curbs” that lots of people, including me, want involves the assurance that there remains judicial oversight and more than just a semblance of checks and balances built into the system. Hardly anyone objects to spying overseas– that’s part and parcel of foreign intelligence, and in fact, there’s virtually no dissent over foreign-to-foreign communications from anyone. So “being soft on terrorism” isn’t a valid reason to capitulate on FISA.

FISA (which stands for Foreign Intelligence Surveillance Act) was born in the aftermath of the Church Committee and its investigation into domestic intelligence activities (as well as extralegal activities conducted by our intelligence agencies overseas, such as the attempted or actual assassinations of foreign heads of state). The abuses prior to the 1970s were numerous, and even today, we are still learning about FBI and CIA snooping– the recent admission that the FBI was spying on Corretta Scott King is just one example of many. The intention of FISA was to permit intelligence gathering overseas, within a system of checks and balances designed to prevent abuses (such as violating/gutting the Fourth Amendment to the U.S. Constitution). Currently, FISA allows surveillance to be granted, upon notification, and the paperwork can be filed later, up to 72 hours.

Knowing a little bit about how lawyers and paralegals work, it’s possible 72 hours is a bit short. But the general framework needs to remain the same. We can’t afford for the checks and balances crafted to be thrown out the window. If there’s a real need to re-work FISA, fine; but currently Congress isn’t really devoting the time/energy to doing so. They’re merely asking Smirk “How high?” when he says “Jump.” That’s not an appropriate response when we’re dealing with civil liberties.

No one in their right mind wants the U.S. to be vulnerable, but at the same time, the civil liberties codified in the Bill of Rights and adjudicated by our judicial system since constitute part of the foundation of what this nation is about, and no one in their right mind wants to surrender these rights as well. At least until now, it seems.

“A Democratic bill to be proposed on Tuesday in the House would maintain for several years the type of broad, blanket authority for N.S.A. eavesdropping…”

By blanket authority, this includes the right to issue blanket warrants; this means instead of requesting that a specific individual be monitored, the government wants the right to go on fishing expeditions, and gather as much information as possible. Those who support this power will argue that most people “don’t need to be worried about this.” Anyone who has observed recent modern history in nations such as East Germany knows perfectly well that this type of authority can be easily abused. Opening the door to potential abuse(s) of power has never been a wise step, and I don’t believe this is going to magically change just because we’re in the United States. Legally, blanket warrants have generally been frowned upon by the courts; by permitting blanket warrants in covert intelligence gathering that occurs without oversight, we as a nation are embarking on a potentially dangerous slippery slope.

Now, that’s just in the House of Representatives. Over in the Senate, the proposed version includes

“…retroactive immunity for telecommunications utilities that participated in the once-secret program to eavesdrop without court warrants.”

Corporate America and the gummint have been strolling along happily hand-in-hand for some time now, and this chummy relationship is more than just about corporate welfare: most of the telecommunications firms have allowed the government to view all sorts of records, regardless of the reasonable expectation of privacy that most of us customers have. It was just revealed earlier today on CNN that Verizon “provided federal, state and local law enforcement agencies tens of thousands of communication and business records relating to customers based on emergency requests without a court order or administrative subpoena.” Warrantless searches are illegal, and constitute the central reason why the entire topic of FISA has been so controversial– it’s against the law. President Smirk has already brazenly admitted he broke this law, and has yet to be held accountable. In fact, the eagerness of Congress to retroactively approve Bush’s behavior appalled me in August, and appalls me now, because it tells me that the cowards that claim to represent us apparently have no intention of honoring the law or the ethics and values of this country.

Verizon isn’t the only one: Comcast apparently has a fee structure in place for “intercept[ing] its customers’ communications under the Foreign Intelligence Surveillance Act.” Makes you wonder just how long this has been going on; it definitely says that there’s been quite a few interceptions for Comcast to have spent the time and energy deciding just how much to charge to allow the government to peek into their customers’ (supposedly!) private communications.

Quite a few other companies have permitted the government to go snooping, but not QWest. In the insider trading trial of former QWest CEO Joe Nacchio, Nacchio attempted to introduce documents showing that the government was already employing a warrantless spying program before September 11, 2001.

If this is true, so much for the claim that we need all these expanded powers “because of 9/11.” In fact, because of the recent information on Verizon and QWest, Congress should halt the rush to pass their bills (the August extension doesn’t expire for a few more months anyway), and more fully examine what the telecoms have been up to. They probably won’t, but they should.

Naturally, the defenders of the program will point to information such as that published in CNN, outlining that Verizon’s granting emergency requests “help[ed] Immigration and Customs Enforcement agents track down a man using a webcam to broadcast the sexual abuse of a 6-year-old boy.” Sure, there’ll always be requests that lead to admirable resolutions. But what else isn’t outlined in that article? What other requests has the government made that are far, far more questionable?

The latest example held up by the supporters of a weakened FISA is the May 12, 2007 kidnapping and subsequent murder of three soldiers in Iraq– the checks and balances currently required by FISA supposedly prevented the timely wiretapping of the suspected kidnappers. FireDogLake puts to rest the suggestion that the current outlines of FISA led to the deaths of these soldiers.

I’m sure those who wish the government to have increased authoritarian powers and the ability to spy without accountability will come up with new examples by the minute. But I’d like to pose a question, the same question I posed to a Feinstein staffer earlier today:

“Suppose you are a private citizen, and you know that your e-mails, phone calls, and letters are potentially or actually being intercepted by the government without a warrant, without your knowledge, and without any consequences whatsoever. What would you want your senator to do?”

The staffer ducked the question, adding that Senator Feinstein, as of this afternoon, still does not have a public opinion on an issue that has been in the news for a while now. But I’ll tell you what my answer to my own question was. I want no blanket warrants, period. I also do not want retroactive immunity granted to companies like Comcast, Verizon, and AT&T. Sure, it may be that in the end, none of these companies did anything wrong. But why allow them to avoid responsibility? Why allow these companies to violate the law as currently written, then face no consequences whatsoever? For an excellent discussion of why there shouldn’t be retroactive immunity for corporate communications, see Glenn Greenwald’s take on the rule of law and why the telecoms should play by the same rules as everyone else, and Greenwald’s examination of the troubling lack of oversight when it comes to these companies– companies that have apparently abdicated their social responsibilities to their clients.

I don’t have a lot of faith in Congress at the moment to do the right thing, but I’m hoping they rise to the occasion. Otherwise, one potential future for America could look awfully like life did for the citizens of Cold War Eastern Europe– a society perpetually under surveillance.