FISA revisited
Wired Magazine appears to have a new blog 27B Stroke 6* devoted mainly to technology, privacy and civil liberties issues. They are certainly doing their homework over there. With google and a phonecall, 27B Stroke 6 discovered last year's statistics for FISA warrants, and they aren't pretty. Every single one of the government's 2,072 applications for secret wiretapping and searches was approved last year by the FISA courts. There are similar statistics for prior years, yet to our knowledge, there have been no arrests for terrorism based on FISA-approved spying activities. There certainly weren't a couple thousand, even a couple hundred, heck, even a couple! arrests of real terrorists last year.
In other words, this is a perfectly legal abuse of our civil liberties. As we've mentioned before, FISA is basically an organized, legal way of expanding executive powers, and undermining our civil liberties. Justified in the name of introducing process into the secret activities of the government's spying agencies, it lacks many features of normal due process, including the right to challenge evidence or appeal, not to mention to know that you're being spied on in the first place. It is, of course, possible to critique FISA for not being properly legal - for having just enough procedural aspects to grant a veneer of legality to the administration without being a real check. This is a problem not exclusive to FISA courts - the military tribunals for Guantanamo detainees clearly suffer from the same problem. One might simply and properly say, in the name of the rule of law, get rid of the FISA courts and come up with a better way of checking the executive.
But those who want to find more effective legal methods for checking the government's actitivities in the war on terror are confusing process and substance. It's not wrong to want the rule of law, though we shouldn't make a fetish out of it. The lesson of 2000 plus approved secret warrants from FISA to no clear end is that the war on terror itself is a bankrupt enterprise in which the real collateral damage is our culture of liberty. No amount of process can correct that.
*This is the name of the form that a customer needs to fill out in Terry Gilliam's "Brazil."
In other words, this is a perfectly legal abuse of our civil liberties. As we've mentioned before, FISA is basically an organized, legal way of expanding executive powers, and undermining our civil liberties. Justified in the name of introducing process into the secret activities of the government's spying agencies, it lacks many features of normal due process, including the right to challenge evidence or appeal, not to mention to know that you're being spied on in the first place. It is, of course, possible to critique FISA for not being properly legal - for having just enough procedural aspects to grant a veneer of legality to the administration without being a real check. This is a problem not exclusive to FISA courts - the military tribunals for Guantanamo detainees clearly suffer from the same problem. One might simply and properly say, in the name of the rule of law, get rid of the FISA courts and come up with a better way of checking the executive.
But those who want to find more effective legal methods for checking the government's actitivities in the war on terror are confusing process and substance. It's not wrong to want the rule of law, though we shouldn't make a fetish out of it. The lesson of 2000 plus approved secret warrants from FISA to no clear end is that the war on terror itself is a bankrupt enterprise in which the real collateral damage is our culture of liberty. No amount of process can correct that.
*This is the name of the form that a customer needs to fill out in Terry Gilliam's "Brazil."
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