The Apologetic Spy

My humblest apologies for a lack of good postings this weekend (or ever, depending on who is defining ‘good’).  I was, actually, quite busy in the yard.

Which forced me to ignore some really good comments I’ve been receiving, in particular on the issue I raised last week about the American Medical Association and homebirths.  I promise, I will get to responding to them soon, but not tonight.

However, I know that everyone says (including my co-blogger!) that I am supposed to be righteously indignant about the imminent passage of the new FISA bill.  For reasons I can’t entirely wrap my mind around, I’m having trouble rousing appropriate levels of indignation.

Contrary to, for instance, the opinion well laid out by commenter “truth=freedom” here, I don’t believe that the FISA law should be revoked.  I can absolutely imagine situations, especially with the modern technological situation, where the necessity to stop your work right in the middle of a case to get a warrant could be destructive to the case itself.  You don’t need to envision the far-too-oft-used ‘ticking time bomb’ scenario to get there, either.  If you watch The Wire, you learn about how easy it is for criminals to keep ahead of surveillance, by using disposable cell phones and dumping them every week or so.  In that case, once you get the number, you want to be on it from minute one.

That said, the original requirements of FISA, that you file for a retroactive warrant within 48 hours of the beginning of surveillance, seems quite reasonable to me.  According to Shane, the policy now is 7 days, which seems a bit long – how hard is it to fill out some paperwork?  But still, the point, to me, is that the obligation to file for a warrant, even retroactively, helps ensure some oversight and some minimal standards in our wiretapping programs.  An intelligence officer is going to be more careful that he or she is actually tapping an illegal communication if it’s going to have to be defended before a judge sometime soon.

The fact that the Bush administration feels it is too much of a burden to ever have to file a warrant is both terrifying and demeaning.  Much like my opinion about the inevitable outcomes if you legalize torture under any circumstances, nothing I know of human nature leads me to believe that wiretaps will remain contained and appropriate if there is no oversight at all.

As for the much-discussed retroactive telecom immunity, I agree that it is absurd and insulting.  However, does anyone out there think that Bush won’t find a way to, if nothing else, pardon every single person who may have been involved in any potentially illegal activity in his last days in office?  Given that, I’m perfectly happy to let this issue slide.  When Obama is president, we can have a comission to look into what, exactly, happened with the telecom companies.  Even if nobody goes to jail, the embarrasment of a public airing of all of their sins will help them think twice about complying with illegal orders in the future.

So I guess that I am a pro-FISA, tepid-at-best supporter of the fight to prevent the retroactive telecom immunity, leaving me open to all manner of attacks from our most excellent commenters, as well as my most excellent co-blogger.  Fire away.


2 Responses to The Apologetic Spy

  1. truth=freedom says:

    It’s not FISA that I have a problem with (after all, you are supposed to get a warrant, and I can accept, if grudgingly, that doing so after some reasonable amount of time is adequate for these purposes). It’s the idea that there are cases where the President (which is a synonym for the Executive branch) doesn’t have to get a warrant if a target is the US. The Fourth Amendment is unambiguous on this, even if the Supremes twist the meaning otherwise.

    And while you are willing to be practical about the consequences of immunizing the telecoms for their complicity in spying on Americans (and just to be clear on this, the spying commenced *before* Sept 11, 2001). What you and I want are not so far apart. The difference is that I think that if Pres. Bush wants to pardon a bunch of telecom execs, he ought to have to do that personally and individually rather than getting Congress to make it easy on him. Then we’ll know what he really thinks about the Constitution, and maybe, just maybe, next time impeachment will proceed when we have an executive that is so determined to ignore the limits to the authority of the President that document describes. Why? ‘Cause that’s all we have to use: Congress is the check on the Executive over-stepping its boundaries.

    It’s just sad, really. The President has the power to do these things, but not the authority, and the authority is all that should matter. It’s not, though, when the people with the power and authority to hold the Executive in check refuse to do so. We’re slouching towards dictatorship, and it’s as though most of us want it, since then life would be simpler. Like in Zimbabwe.

  2. Jenny says:

    FISA is just one of the things that outrages me about this administrations disregard for the rule of law and our human-civil rights as Americans. Last week there was an interesting interview on Fresh Air with Philippe Sands, a legal expert on human rights, in which he asserts that Rumsfeld, Cheney and perhaps Bush himself are guilt of war crimes and are likely to be pursued by the international community eventually. I can’t wait.

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