Congressional Huevos

Yesterday, I began writing about my recent frustrations with Congress. The whole situation in the Legislature, especially the prioritizing of fruitless steroid hearings, really irked me. It seemed like other matters, including the potentially disastrous new FISA, should take precedence over Roger Clemens, but I’ve completely changed my mind over the course of the last 24 hours, so I scrapped it and wrote this.

To begin with, the background on FISA. The Foreign Intelligence Surveillance Act is what sets the rules for spying: on whom you can spy, and how can do it. The whole reason this exists, and it has been around for decades for this purpose, is to protect American citizens from unlawful search and seizure (see: U.S. Constitution, Amendment IV).

Say you’re the CIA, and you want to go outside the general methods afforded you by FISA, don’t worry, you have options. All you have to do is go before a judge, in a FISA court where the records are sealed, state your case, and obtain a warrant. No one gets tipped off, and you can still spy to your heart’s content. It only takes a few hours, and protects law-abiding Americans from all kinds of J. Edgar Hoover style villainy.

It’s been like this for decades, and the CIA, NSA, and FBI have all learned to live with it. It’s an important check on law enforcement. They’re there to protect citizens, but too much power in the hands of the authorities is not democracy, it’s totalitarianism (see: Orwell, George; Huxley, Aldous).

The Bush Administration, as per usual, wants to turn the tables. Not on terrorists, mind you, but on the American public. They want to get rid of FISA altogether, so that the NSA can eavesdrop on anything they want to. No warrants, no restrictions. This is every bit as bad as the Patriot Act. Bush and his allies seek to open up all sorts of totalitarian methods, using the ambiguous threat of terrorism. No one seems to understand that it’s counterintuitive to sacrifice the essential provisions of democracy in the name of defending that system of government.

Law enforcement has been circumventing the law for years. Three months ago, former AT&T employee Mark Klein blew a whistle. He testified that, at the AT&T headquarters on San Francisco’s Folsom St., there is a 1200 sq. ft. room, # 641A, where every bit of data sent through AT&T’s network of wires and airwaves is copied and stored, so that federal agents can examine it later. He knows this because he personally oversaw the room's operation, and designed the system that feeds the data into the storage facility.

No selectivity. Every bit of sent data, every phone call, every internet transaction, is saved. This is rife with potential abuses. Anytime you make a political donation, sign up for the Planned Parenthood mailing list, look up information on communism, buy a book on atheism, etc.: all of that is saved. God forbid you should look at porn.

Thus, we have a major problem on our hands. With no such thing as privacy, every action you make that involves a wire or airwave can potentially be used against you at a later date: perhaps in a formal investigation, or perhaps as simple blackmail.

The Fourth Amendment would theoretically stand in the way here, but no one seemed too concerned about it. It’s more than just a slippery slope, it’s a precipice: you ignore civil protections once, and where does it stop?

Perhaps we could re-write the Miranda Act, and have it read to everyone when they’re born, “Keep in mind that everything you do on the phone or on the internet, ever, can be used against you for any purpose your government deems fit.”

Civil liberties groups did the right thing, and sued AT&T, Verizon, and other telecommunications companies for unlawful search and seizure. The lawsuits are pending. A legal challenge is likely the only way to find out what has been happening with this data, and to make sure that our rights remain intact in the future.

Which brings us back to FISA. FISA is the kind of bill that has to be renewed every once in a while. It expires this month. In the Act’s renewal, GOP lawmakers attached an extra provision: retroactive immunity for all of the major telecoms. This would mean that American citizens whose Fourth Amendment rights were violated, and blatantly so, would have no legal recourse. Thus, we will not be able to defend basic civil liberties from the infringement of major corporate interests.

The GOP has these corporate interests in mind. The telecoms have long been among the most powerful and well-established of lobbying groups in Washington, so their beneficiaries in Congress are loathe to disobey them at this point. With immunity, the telecoms and the Federal Government would form a partnership of surveillance, where everything is on the record and every citizen is treated as a suspect.

The FISA bill stalled in Congress, for the obvious reasons. Even the most jaded legislators had jitters about passing a law that effectively nullifies one of the Constitution’s great civil liberties.

Bush trotted out his standard ploy: if you don’t pass this act, America is at risk. Never mind that there hasn’t been an attack on American soil since Sept. 11. People are plotting against us this very second, and if we don’t pass the bill right now, terrible things will happen and you (Congress) will be at fault.

I realize it sounds like I’m exaggerating his meaning, but I’m actually downplaying his rhetoric. This is his actual statement, made last week in the Oval Office. As you’ll see, it is much more inflammatory, “At this moment, somewhere in the world, terrorists are planning new attacks on our country. Their goal is to bring destruction to our shores that will make September the 11th pale by comparison.”

Rarely has a President so patently and cruelly stoked his nation’s fears, with so little substance. Given the context, I can think of few more shameful statements he has made.

The Senate bit on the fake, and passed the bill on Tuesday with only 29 Senators voting against it. John McCain voted in favor the bill. Barack Obama was one of the 29 who voted against it. Hillary Clinton was not, instead choosing to abstain. On the day of the Potomac primaries, with all three candidates campaigning in the area, Hillary opted to skip the crucial vote, in order to avoid taking a stand on a volatile, though seemingly cut and dried, issue.

If you needed another reason, besides his composure, to support Barack Obama over Clinton and McCain, you have one.

Yet, in a reminder of the value of a bicameral legislature, the House diverged from the Senate. They passed the FISA bill, but without the immunity provision. It went to the President’s desk, and, in a brave defense of national security, he....refused to sign the bill into law.

Congress then offered a 30-day extension of the old FISA in order to cover the time until a compromise could be struck. No, said the President: a bill with immunity or nothing. He ordered the House to pass the Senate’s version of the bill, and pronto. Having played fear politics over the bill already, Bush thus made his position perfectly clear: the telecoms’ immediate corporate interests are important enough to jeopardize the same national security he had so inappropriately trumpeted the week before.

Urgency isn’t particularly important for FISA anyway, because any actions approved during the previous Act remain valid for a full year. It’s not as though the Act’s expiration will cause NSA to stop listening to our phone calls tomorrow. So, regardless of what the President says, Congress has plenty of time to craft a quality law, rather than rush a destructive one.

Yesterday afternoon, the House leadership finally showed some huevos on civil liberties, which brings me to the reason I wrote this post.

I had been fuming for about a week over the hearings the House Oversight Committee chose to hold regarding the MLB steroid scandal. At this point, it’s depressing, it’s old news, and information gets us nothing. The House has no power to rectify the problem anyway, and the players stonewall, just as they did during the first round of hearings 3 years ago. It seemed like a colossal waste, especially when there are pressing matters that include FISA, a $150 billion tax rebate, and a half-dozen other crises facing the legislature.

Perhaps it was a brilliant political maneuver. Yesterday, when the GOP attempted to bring FISA to a vote before the House, the Democratic leadership promptly decided to end the session of Congress without voting for the bill.

It was no accident. Congressional Democrats actively chose to ignore the President’s shameful and baseless fear-mongering, table the bill, and wait until they returned to session. They called his bluff, and when they return, they’ll likely find Republicans more convinced of Democratic resolve.

One wonders if the Democrats saw this fight coming, and opted to hold lengthy, visible baseball hearings to dominate the news cycle and make themselves seem busy -- the equivalent to a public-opinion filibuster. Maybe the steroid hearings had nothing to with it, but you have to love the walk out regardless.

Might we finally have a legislature that won’t fall for the President’s deceptions -- one that will stand tough in the face of Constitutional degradation and an Executive Branch run amok? Time will tell.