Why I Can Live With The FISA Deal

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10 Jul 2008 09:40 am

A reader writes:

In regards to the FISA capitulation, you've helped answer one of your oft-asked questions - where's the anger? You ask this in relation to torture and have ended several posts with "get angrier". I couldn't agree more, and I can't understand your indifference to telecom immunity and this FISA BS. The same principle is in play for torture and FISA - whether the country is ruled by men or ruled by laws. Torture may be more abhorrent, but the bar is very low for both issues and this administration's over-reach so disturbing, that I can't understand your passion on one and indifference on another.

You say you can't get worked up about it (as opposed to simply not being worked up about it), your priorities are different to Glenn Greenwald's, and you're probably assuming no-one is breaking your civil rights by checking on your communications. It may even be that you wouldn't mind if someone listened in on your phone calls, while you certainly would mind being tortured. Would you mind if someone in authority took a disliking to you and spied on you to cause you harm? I suspect your indifference here is similar for a majority of people with torture - it only happens to bad people, most likely brown people, and it will never happen to me, so ... whatever.

The FISA capitulation is infuriating. Torture is infuriating. If those responsible are never held accountable, then America is a very different place from now on than it was before. I've donated to Obama, which I thought was kinda weird 'cause the money in politics is obscene, but he won't get another cent from me. I'll also be checking out Glenn's blog more often, and maybe yours a little less (that Obama ad really is annoying).

I re-read Glenn's many posts on this subject and listened to his debate with Soderberg and re-read accounts of the bill last night. I hope I'm not indifferent to this, and regret my occasional glibness, although I do think of it less profound an issue - in moral and political terms - than torture. There are important principles here and I respect the case that Glenn has made and admire his passion on it. It's clear, moreover, that crimes were knowingly committed;

it's clear to me that the president seized powers beyond his reach and, more importantly, retained those powers after the initial crisis; it's clear too that the telecom companies should have known they were complying with illegality and refused after an initial period.

But it seems to me the focus of blame should be on the president and should be exercized primarily through political rather than legal means. And the trouble with prosecution is that it does become difficult to determine when exactly we stop forgiving illegal actions designed for the public safety in the immediate wake of a catastrophe like 9/11. I do forgive it in the wake, and see some lee-way for executive energy in moments of crisis or unknowing probably for a while thereafter (even though it horrifies me that the Bush administration would have merrily assigned all these powers to itself indefinitely if it could, and not even told anyone, let alone come promptly to the Congress asking for a reformed FISA law). But how do you prosecute a company on the basis of that kind of blurry line - granting immunity before but not after a point we deem appropriate or defensible?

My concerns are appeased now that the Congress has signed on in the light of day, that a court is there as a safeguard, retroactively if necessary, and that FISA is re-established as the exclusive mechanism for government wiretapping. I don't consider this a capitulation to triangulation or Beltway insiderism or to Obama-worship. I consider it a middle ground between vital intelligence gathering - the non-coercive type - in an increasingly complex telecommunications system in a very dangerous war.

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