Sunday, March 2, 2008


"There can be no doubt—"said K., quite softly, for he was elated by the breathless attention of the meeting; in that stillness a subdued hum was audible which was more exciting than the wildest applause—"there can be no doubt that behind all the actions of this court of justice, that is to say in my case, behind my arrest and today's interrogation, there is a great organization at work. An organization which not only employs corrupt warders, oafish Inspectors, and Examining Magistrates of whom the best that can be said is that they recognize their own limitations, but also has at its disposal a judicial hierarchy of high, indeed of the highest rank, with an indispensable and numerous retinue of servants, clerks, police, and other assistants, perhaps even hangmen, I do not shrink from that word. And the significance of this great organization, gentlemen? It consists in this, that innocent persons are accused of guilt, and senseless proceedings are put in motion against them..."

The Trial
Franz Kafka
But for decades, the FISA court -- for obvious reasons -- was considered to be one of the great threats to civil liberties, the very antithesis of how an open, democratic system of government ought to function. The FISA court was long the symbol of how severe are the incursions we've allowed into basic civil liberties and open government.
The FISC is a classicly Kafka-esque court that operates in total secrecy. Only the Government, and nobody else, is permitted to attend, participate, and make arguments. Only the Government is permitted to access or know about the decisions issued by that court. Rather than the judges being assigned randomly and therefore fairly, they are hand-picked by the Chief Justice (who has been a GOP-appointee since FISA was enacted) and are uniformly the types of judges who evince great deference to the Government. As a result, the FISA court has been notorious for decades for mindlessly rubber-stamping every single Government request to eavesdrop on whomever they want. Just look at this chart (h/t Arthur Silber) for the full, absurd picture.
Yet now, embracing this secret, one-sided, slavishly pro-government court defines the outermost liberal or "pro-civil-liberty" view permitted in our public discourse. And indeed, as reports of imminent (and entirely predictable) House Democratic capitulation on the FISA bill emerge, the FISA court is now actually deemed by the establishment to be too far to the Left -- too much of a restraint on our increasingly omnipotent surveillance state. Anyone who believes that we should at the very least have those extremely minimal -- really just symbolic -- limitations on our Government's ability to spy on us in secret is now a far Leftist.

The "liberal" position on the Surveillance State
Glenn Greenwald
If you read the rest of the Greenwald essay, you'll get a bit of a history lesson of how FISA was originally received by folks from a wide variety of political persuasions. Heck, the pro-FISA forces back then were primarily the usual array of bad guys and their toadies. These days, to be a "respectable" and "responsible" liberal or progressive, one must toe the party line on granting the government unlimited carte blanche to spy on whomever it wants, with impunity. All that need be said is that there is an on-going "emergency" of one sort or another - be it The International Communist Conspiracy (back in the 1970s when FISA was first foisted upon us) to today's International Islamist Conspiracy. Hence, FISA remains, augmented with the recently deceased "Protect America Act" - a vile law that will likely be resurrected by the soul-less pond scum that pollute the halls of Congress these days. As I said almost two weeks ago:
Once a regime has assumed that kind of power, it's hard for that regime to give it up. "Emergencies" have this funny tendency to either stretch into what might as well be eternity, or the population may be subject to an on-going series of "emergencies." Either way, the regime in question will just keep on assuming whatever "extraordinary powers" for what is promised to be only a "short time." The so-called "respectable" progressives will of course rue that such situations "necessitate" such extraordinary executive power, but, their hands are tied. After all, who wants to appear soft on "terrorism" (or whatever the flavor of the month "threat" happens to be at the time)? One might lose valuable advertising on one's blog or face a primary challenge for daring to point out - even meekly - that such powers are unneeded or that the "emergencies" are at best overblown if not altogether nonexistent.
To remind the readers of a quote that we must never forget:
Eternal vigilance is the price of liberty—power is ever stealing from the many to the few…. The hand entrusted with power becomes … the necessary enemy of the people. Only by continual oversight can the democrat in office be prevented from hardening into a despot: only by unintermitted Agitation can a people be kept sufficiently awake to principle not to let liberty be smothered in material prosperity.

-- Wendell Phillips, Boston, MA, January 28, 1852
The price of the alternative is the risk of being caught up in a Kafkaesque legal system that operates largely in secret, by functionaries who have been appointed by rulers who have practically no connection whatsoever to the electorate. In the rest of the world, such a scenario would be considered a hallmark of a dictatorship. In the US, we call it "democracy."

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