FISA (Finding Indignation Somehow after All)

Ever since Congress passed the FISA Amendment Act of 2008, I've been trying to figure out what I want to say about it.  Several times over the last few days, I've opened a new post and stared at the white space without typing a word.  Normally, I'm not short on things to say, but thinking about the changes to the Foreign Intelligence Surveillance Act, I find I can't come up with anything that adequately expresses my dueling sense of horror, betrayal, rage, and defeat.  Or at any rate, it's hard to transcribe the inarticulate cries of moral indignation that were my first reaction to the passage of the bill.

FISA has always existed in a bit of a grey space, allowing retroactive warrants to be issued for wiretapping, but this new amendment pushes it out of the grey and into some place much darker.

Let us look first at our humble Fourth Amendment:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

It says only that we have the right to privacy, unless a well-documented reason exists to suspect that we are breaking the law.  Only when that reason exists and is properly attested to by officers of the court, will our homes, belongings, and personal communications be searched or scrutinized.  See how beautiful that little amendment is?  To paraphrase it takes me almost as many words as the amendment itself.  Economy of language and sentiment.

The new FISA amendment essentially does an end-run around the Bill of Rights.  Everyone is angry over the retroactive immunity the bill offers to telecommunication companies who have helped or will help the government engage in illegal data-gathering, but that's hardly news.  The government has always been in a position to protect companies that helped it break the law.  More troubling is that the new FISA allows the government to conduct these searches--both of physical property and of personal communications--without keeping records.  It allows emergency warrantless wiretapping to last as long as seven days, and it guts the portion of the Fourth Amendment that requires the "particular" description of places to be searched and the persons or things (including data) to be seized.  In short, the new FISA gives the government permission to engage in fishing expeditions. 

After all, theoretically, we're all potential criminals, potential terrorists, so all of our personal communications could potentially contain incriminating information.  If the government no longer has to specify what data they're looking for, couldn't they just say they need to have access to all the personal communications of every citizen. 

Stasi_usa

It happened in East Germany, where the Ministerium für Staatssicherheit infiltrated the private lives of its citizens so completely that by the time the Berlin Wall fell, it was estimated that a full 30% of East Germany's citizens were actually spying for the Stasi.  Remember Operation TIPS?  People made a big fuss, and the Bush Administration backed down.  They didn't stay down, and this time there doesn't seem to be much complaint about the new FISA.

Of course, it all reminds me of when we lost habeas corpus, and I waxed indignant about how much vitriol gets spent on defending the Second Amendment, even though we never use our guns to protect our other rights.  It holds true here.  Guns are physical things, and if the government passed a law requiring people to turn them in, you'd have a fight on your hands.  Take away our intangible rights, the ones we can't see well enough to know when they disappear, and people don't take up arms against the government.  We blink stupidly, like a fat raccoon startled in the garden, but we don't do much more than hiss and grumble before we scurry away.