So right now Congress is fighting over whether to grant big telecom companies retroactive immunity to prosecution for having violated the privacy rights of millions of customers by allowing the government to spy on them. (Big campaign contributors and fear of terrorism vs. Constitutional principle… let’s see, who do we think will win that one?)
The newest salvo in the ongoing fight over whether the government should have the power to eavesdrop on anyone without a warrant comes to you below, from Fox News:
Few things. First, here’s how FISA works, briefly. There are, as makes sense, three basic types of communication: domestic-domestic, which is covered by the 4th Amendment; foreign-foreign, which isn’t; and domestic-foreign, which is what FISA addresses. Effectively, it says that if the NSA, CIA, or any other intelligence-gathering service wishes to listen to calls, read e-mails, etc., that are going between someone inside the U.S. and someone outside the U.S., they need to obtain a warrant first. That’s it.
Now, there was a funky loophole in the law which became prominent as communications tech became more advanced. Namely, what happens if someone in Syria is talking to someone in Pakistan, but the call is routed through Michigan? It’s clearly a foreign-to-foreign call, but it’s also kind of domestic. So the law was amended recently to close that loophole. This makes sense, and despite what’s claimed toward the end of the clip, neither Silvestre Reyes nor any other prominent Democrats opposed the change. (Yes, Fox News, lying to its viewers, I too nearly died of shock.)
Anyway, I’ve a feeling we’re going to hear the tale of these dead soldiers a whole lot in the coming days, and a few things need to be clear. First, there’s a provision in FISA for emergencies. Since foreign intelligence gathering is, on occasion, time-sensitive, the government’s allowed to engage in surveillance without a warrant for up to 72 hours, as long as they then apply for one and can prove that there was no time to apply normally. “Three of our guys were just kidnapped and we need to find out where they are” would seem to qualify as an emergency. In fact, it did, the thing that held up the surveillance was that no one could find a high-ranking official at the Justice Dept. to sign off on it (what with half of them resigning either in protest or disgrace), not that “the law was cumbersome,” as is claimed in the clip.
Secondly, as I said earlier, the foreign-to-foreign-but-kinda-domestic loophole which was ever so slightly problematic in this situation (and I can’t stress this enough) has been fixed already. Not only that, but with overwhelming support from both parties, because it made sense to do so. So why would the GOP bring up this story now?
For the same reason they put a provision that hurt unions in the bill establishing the Homeland Security Department, waited until just before the ’02 election to vote on Iraq, and forced a vote on expanded surveillance powers just before Congress went on recess this summer. For the same reason that Saxby Chambliss put Max Cleland next to bin Laden, and Rudy Guiliani is running for President of 9/11. Because no matter how low their approval ratings may be, how outrageous the powers they’re asking for are, they’ve figured out that they can get whatever they want as long as they scare everyone into thinking that Americans will die if they don’t get their way.
Now they’re gearing up to do it again, and they’ll keep doing it. Unless. Unless we realize that fear makes us stupid, and remember that unwise decisions will only create more things that go bump in the night. We’ve done the fear thing for a few years now. Let’s give wisdom a shot, shall we?