Criminality-"RATIFIED BY CONGRESS"New FISA Law & the Construction of the National Surveillance State

[kpete]

Thursday, July 10, 2008
The New FISA Law and the Construction of the National Surveillance State
JB

Bush's illegal program has to a large degree been ratified by Congress.

....... I want to say a few words about the larger meaning of what has happened.

First, its worth watching to see if President Bush issues a signing statement to the legislation that reserves the right to disregard any provisions requiring accountability and reporting to Congress and the courts. He has done so before with other legislation, for example, regarding national security letters. If President Bush does issue such a signing statement, even after having repeatedly pressed for this bill, Democrats will look particularly foolish; for it is these provisions (and the FISA exclusivity provision) they have pointed to as the major reason why it is acceptable to vote for the bill. Of course, Bush will only be in office for about 200 more days, so he will have comparatively few opportunities to act on his threat to disregard the accountability and reporting provisions. Thus the real issue is whether the next Administration will continue to hold the same views as Bush/Cheney/Addington on the President's Article II powers to disregard legislation. If the next Administration does hold such views, even the FISA exclusivity provision won't mean much, because the next President will simply disregard it, much as Bush disregarded FISA's already existing exclusivity provision.

......................

Sandy Levinson and I have noted previously that we are in the midst of the creation of a National Surveillance State, which is the logical successor to the National Security State. And we have noted that, like the National Security State before it, the construction of this new form of governance will be a joint effort by the two major parties. It so happens that in 1947, when the National Security Act was passed, the Democrats controlled the Presidency while the Republicans controlled Congress. In this case it is the reverse. But the larger point is that both major political parties are committed to the build up of surveillance programs and technologies for purposes of security and the delivery of government services. We are going to get some form of National Surveillance State. The only question is what kind of state we will get. As of right now, it looks like we will get one that is far less protective of civil liberties than we could have gotten. Some of the new features of the surveillance bill have sunset provisions, and others may be altered through amendment if and when the Democrats take the White House. Still the fact that Barack Obama ended up supporting this bill is not particularly good news.

...............

The lesson is that there are at least two different ways for the executive to increase his power. One is when the President seizes power through unilateral action. The second is when Congress gives it to him. In 2001 Bush chose the first path. In 2008 Congress (controlled by the other party no less!) is offering the second path. In both cases, the executive becomes more powerful. To be sure, the new bill does impose new reporting and accountability requirements. But, as noted before, let's see if the current Administration-- and the next one-- tries to wriggle out of them. The larger point is that two parties are not in fact dividing over the issue of Executive power. Both parties seem to like more and more executive power just fine. They just have adopted different ways of achieving it. One can expect far more Congressional cooperation if a Democratic Congress is teamed with a Democratic President. The effective result may not be less Presidential power to run the National Surveillance State. It may be in fact be more.

I repeat. If you are worried about the future of civil liberties in the emerging National Surveillance State, you should not try to console yourself with the fact that the next President will be a Democrat and not George W. Bush. It's worth remembering that the last Democratic President we had, Bill Clinton, was not a great supporter of civil liberties. (I was therefore amused to see that his wife, Hillary Clinton decided at the last minute to vote against the bill. Good for her, but I have difficulty believing that the choice was a purely principled one). The mere fact that the next President will be a Democrat-- even a liberal Democrat-- is no guarantee that he will work hard to protect civil liberties in the emerging National Surveillance State. It is not enough to say that Obama has taught constitutional law before he became a United States Senator; so did Bill Clinton before he ran for governor of Arkansas.

more at:
http://balkin.blogspot.com/2008/07/new-fisa-law-and-construction-of.html

[Uncle Joe]

1. New reporting and accountability standards mean absolutely nothing.

" In both cases, the executive becomes more powerful. To be sure, the new bill does impose new reporting and accountability requirements. But, as noted before, let's see if the current Administration-- and the next one-- tries to wriggle out of them."

This Congress has set precedent, the President is above the law, and the Constitution along with the American People's freedom and privacy don't mean squat to them.

[frog92969]

2. This is bad news no matter how you look at it

It's a clear sign that we're in very deep shit.:-(
We're going in a direction I'd wish on no nation.

[mmonk]

3. Yes it is. Those of us that are worried though are often chastised

due to the thinking that Obama will be president as if that means something. Others say its but a small matter of little consequence. Then there are Americans, who like predecessors in history who lost their freedom, say it doesn't matter if you haven't done anything wrong, which ironically, is why it matters.

[frog92969]

4. Can't leave the comfort zone I guess

It's unpleasant to realize that you're merely an obstacle to your own governments agenda. That being a citizen makes you an enemy of the state.

[mmonk]

5. Ironically, I've been thinking of the movie "Enemy of the State" recently.

I've also been thinking about the deafening silence while civil libertarians carry on the law suits and activists keep complaining to no avail.

[villager]

6. The only way out, now, may be the late Ed Abbey's admonition to "be of good cheer, for soon

...the whole military/industrial establishment will collapse under its own weight."

Indeed.

But what will it take with it on the way down?