by Mentarch | 6/26/2008 02:10:00 PM
Considering all the (righteous) hooplah concerning the capitulation on the FISA + "telecom immunity" + FISA "wide open", we should all be taking into account what FISA always was to begin with - an affront to the 4th Amendment of the Constitution of the U.S.A. (emphasis added):

The act was passed in 1979, in the wake of the Church Hearings and other congressional action that exposed and shut down the FBI's COINTELPRO domestic spying program. From the late 1940s through the early 1970s, the FBI was spying on tens of thousands of American citizens, with little or no oversight. What began as a search for communist inflitrators widened into surveillance on political groups, right and left, that were seen as threats. After Watergate and the end of Nixon's "imperial presidency," as it became apparent that the FBI had been used as a tool to stifle dissent, Congress put an end to COINTELPRO with a series of statutes that forbade electronic surveillance except by means of a search warrant.

But the intelligence agencies argued - persuasively - that this left a gap in terms of intelligence-gathering on foreign agents operating in the U.S. Having to go to an ordinary judge, many of whom have only minimal security vetting, and lay out specific "sources and methods" information to get an intelligence wiretap warrant, might compromise the security of those "sources and methods." In some instances, it might put the lives of informants and other assets at risk. The intelligence agencies argued that they needed another, more secure way to gain such warrants.

And thus was born FISA - the Foreign Intelligence Surveillance Act - and the very first secret court in our nation's history. Yes, the FISA Court is a secret court. FISC judges undergo full security vetting, because they will have access to "sources and methods" material, the factual allegations constituting probable cause for a FISA warrant. The affidavits for FISA warrants are classified. The subject cannot see the affidavit, nor challenge its factual basis in court.
See how FISA and its FISC constituted an affront to the 4th Amendment to begin with? That is what some bloggers have been decrying all along since the current "telecom immunity" issue began - most notably Chris Floyd (example here) and, especially, Arthur Silber (example here).

But as if this was not bad enough, then came the "breaking of the wall of separation" between intelligence gathering and regular law enforcement (emphasis added):
And that seemed reasonable, because the original FISA specified that no information gained by means of a FISA warrant could be used in a criminal prosecution. There was a "wall of separation" between the intelligence-gathering and law enforcement sections within the FBI. The former was to investigate foreign espionage cases; the latter was to investigate crimes and gather evidence for prosecution. And because FISA warrants were not reviewable in a trial court, the two were not allowed to mix.

That ended with the USA PATRIOT Act. The consensus, after 9/11, was that the plot might have been stopped had the intelligence and law enforcement agencies been able to share information. Foreign-trained and -financed terrorists acting in the United States do seem to pose a special case, as they are not "spies," but rather are plainly "criminals." Thus the USAPA took down that "wall of separation," allowing information gained from FISA warrants (and other classified intelligence methods) to be used by law enforcement agencies and in criminal prosecutions.
And thus, after being maimed by FISA proper, the 4th Amendment was effectively killed once and for all by the USAPA. In other words (emphasis added):
Not even (a) trial judge can see the FISA affidavit. It is classified, "sources and methods" information. The prosecutor can show the judge that a FISA warrant was indeed issued, but that's as far as it goes.

Because (the defense) can't see the factual allegations underlying the FISA warrant - not even the trial judge can see that - (the defense) cannot challenge the validity of that warrant. It's not reviewable. Not at trial. Not on appeal. Not ever.

Which means they could have said anything they wanted. They could have had only the flimsiest pretext of probable cause. They could even have lied outright. You'll never know, so you can't challenge it.

Oh, and the FISC has refused fewer than five of the tens of thousands of warrant requests submitted, in the past 19 years. The FISC is, quite literally, a rubber-stamp court.

This is the "protection" offered by FISA. This is the "constitutional safeguard" so many of you are so up in arms to preserve. It is no safeguard at all.
See? It is a basic truism that one's constitutional rights exist only so long as one (or one's lawyer) can challenge their violation in court. In this respect, FISA is definitely not the last bastion of the 4th Amendment - as too many progressives out there like to claim in the context of the current issue of "telecom immunity" capitulation.

Even worse, there are those progressives who are actually supporting/defending/excusing some of the Democrats who capitulated, including Barack Obama (examples here and here), or worse - deciding to accept the lesser of two evils.

This is ludicrous, since, as Silber puts it:
(...) as odious and destructive of liberty and privacy as the new FISA "compromise" bill is, there is one perspective from which the momentous to-do about this legislation is very badly misplaced. The selective focus on FISA misses the crucial larger picture (...) if we were genuinely concerned about civil liberties and privacy, we would return to the Fourth Amendment and the procedures it requires, and the FISA regime would be abolished entirely. That's right: it would be abolished. No one wants to do that. Too radical, doncha know. That's scary talk, much scarier, it would appear, than the tyranny which daily strengthens its death grip on all our throats. Nonetheless, if you want to understand the nature and scope of the decades-long attack on individual liberty, you had better remember what FISA is.

Moreover, understand the nature of the old FISA regime, which appears to be just fine with almost everyone, Republicans, Democrats, progressives, everyone. Steny Hoyer has helpfully spelled out the near-omnipotent powers of FISA under the old scheme. Understand how comprehensive it is, and how comprehensively it destroys civil liberties.
Silber then goes on to provide but a few further examples of "sinister instruments", detailing their forceful penetration into every aspect of the lives of Americans.

And Chris Floyd to add:
Watch the layers peel away. The FISA compromise bill is abominable, without question; anyone who supports it cannot possibly be regarded as a serious believer in constitutional democracy. Yet behind this truth is another one, noted above: the FISA system itself is an abomination for a free people. And behind this comes yet another, grimmer truth: the FISA system, either old-style or the new Obama-abetted version, is just a miniscule part of the "endless array of weapons" at the disposal of the National Surveillance State (...).
In short: no one is safe.

And I submit here this further axiom - Canadians are not safe either:
The free sharing of intelligence databases between American security agencies and Canadian ones paves the way for full, unrestrained and potentially abusive domestic spying-by-proxy on both sides of the border. Why? Because Americans can spy on Canadians without warrants and Canadians can spy on Americans without warrants, being allowed to store their data into databases ... which are in turn freely shared between American and Canadian security agencies.

That's North American integration for you.
It is a given, demonstrated fact that governmental security agencies are not seekers of truth, but seekers of guilt. Whenever they are given any powers to spy on their own citizens, they will do so - for reasons frivolous, paranoid or (apparently very rarely as shown so far) actually justified.

Anything and nothing can - and will - be held against you.

Because in the mindset of governmental security agencies, everyone is suspect, everyone is guilty. Period.

And that is not taking into account the plain, typical bureaucrat, often frustrated by his/her bleak, menial job and driven by his/her petty jealousies. Such potential banality of evil is clearly illustrated by Silber:
The fact that every aspect of our lives is regulated, directed and controlled has a further result, one of the most dangerous of all: If someone in government decides to go after you, he has an endless array of weapons from which to choose. Even if you emerge from the battle with your life largely intact, anyone in government who wishes to do so can turn your life into hell for years on end, even for decades. It may all begin with some pathetic bureaucrat in a cramped, stifling cubicle. Perhaps someone cut him off in traffic that morning; perhaps he had a fight at home the night before. Perhaps he's just a rotten human being. He happens to come across your name on some document, and he thinks: "I know: I'll go after him. That could be fun." And your life is destroyed.
Once again: welcome to the Security State of North America, my friends.

Food for thought, eh?

(Cross-posted from APOV)

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Blogger eOz on 7/03/2008 9:58 PM:

I remember, but cannot find the citation, Al Gore cited as saying that privacy would be the most important issue of the 21st century. I have searched for the exact quote, in vain, for months. It is possible someone else said it and my memory is wrong. But the sentiment is true.

From all sides, the issues of privacy, and the erosion of it in our nation, are evident. That people in power are using it to further their own ends is obvious. That those same people are claiming to assist us is also obvious. What is not obvious is that these advocates of violating our privacy are loathe to have their true machinations exposed -- thus the irony that they increasingly live in fear of discovery and exposure.

Ultimately, it will probably be the power of the People to accumulate and digest vast amounts of information cleansed and vetted by professionals like historians that will start penetrating this cabal of info-peeping-toms. And when we are able to track every lobbiest and dirty deal they cut with ease and at electronic speed that they will finally want the same protections the Founders wished for all of us.

The watchers do not like being watched. The powerful do not like being exposed, and thus lose their power. Let us push forward with honest methods and technologies to leave them no quarter to hide their schemes and machinations any longer. Sadly, that may be the only way privacy comes to the forefront as the kind of political issue it should be.

Thank you for this post. It is work like this which pushes us forward and exposes those who pretend to protect us while actually weakening our Constitutional compact -- the only source of real strength our nation has ever had.