This week’s so-called “compromise” between the Whitehouse and Congress on the FISA bill is no compromise at all. It’s capitulation. The Democrats bowed to the will of the President and the telecom companies, selling out the citizens, civil liberties and the Fourth Amendment in the process.

Background

The FISA law was passed in the 1970s to regulate the government’s ability to monitor communications. It requires law enforcement agencies to get a warrant from a secret court before tapping the communications of any US citizen. The idea was for the government to be awarded this power only in specific cases without tipping off the subjects of the wiretaps, while also protecting the rest of the citizens from wholesale monitoring of their communications without probable cause.

In 2002, the Bush administration decided that FISA was no longer relevant and moved to bypass the law without informing Congress. The administration directed the National Security Agency (NSA) to install monitoring equipment at major telecommunications hubs across the country, but the NSA needed the permission of the telecom companies. AT&T and Verizon agreed, and in doing so, broke the law. Qwest refused.

Once installed, the equipment allowed the government to monitor the phone calls, emails and internet activity of almost everyone in the United States, without a warrant. This is precisely the scenario that the FISA law was designed to prevent.

The warrantless wiretapping program continued unhindered and unnoticed for years, compromising the privacy of untold numbers of Americans. It took a whistleblower from AT&T for the word to finally get out. After the New York Times broke the story in 2005, AT&T and Verizon’s customers, along with civil liberties groups, filed law suits claiming illegal invasion of privacy. The FISA law itself provides for criminal sanctions and civil damages for each instance where communications were unlawfully monitored.

In response to the law suits, the telecom companies claimed that they were only doing what they were instructed to by the Bush administration. However, a federal judge in the case ruled that the companies cannot reasonably claim to believe that their actions were legal, so the suits are still pending. That’s where the Whitehouse stepped in again and asked Congress to pass a bill revising FISA and giving retroactive immunity (aka amnesty) to the telecom companies for implementing the illegal program.

Congress did just that, but there was opposition from some Democrats. The Bush administration threatened to veto any legislation which did not grant amnesty to the telecom companies, so eventually, a so-called “compromise” was struck. However, it’s unclear how the proposal is really a compromise, because the amnesty is still in the bill, clear and unaltered. The House has already voted to pass it, and the Senate is expected to pass it soon.

If the bill becomes law, which looks likely, Congress, at the behest of the Bush administration, will have wiped out all accountability for the telecom companies, including cases where they clearly broke the law. Furthermore, the public will never know the extent of the spying, because the bill includes provisions to keep that information concealed.

How we got here

The FISA law was born out of a real need. Enemies can and will act from within US borders and it is reasonable that the government be able to monitor the communications of those it suspects of planning to do harm. The rights of the citizens to be secure in their persons and privacy also need to be upheld. FISA seeks to balance those two needs. Although the law may require some modernizing, the basic idea is sound.

The US legal system requires law enforcement agencies to put forth a minimal amount of evidence against a specific person to justify a search. In actual practice, presenting probable cause to obtain a search warrant is not a particularly high standard. Over a 15 year period ending in 2006, the FISA court granted 22,985 warrants, and only five were rejected, so any claim that the FISA system was overly burdensome or a hindrance to law enforcement is disingenuous. What it prevented was the massive data mining dragnet that has likely been installed by the NSA, and that’s what needs to be curtailed.

The telecom companies clearly and knowingly engaged in illegal actions at the request of the government. There needs to be a consequence for that, so that the government doesn’t feel that it can compel wholesale and illegal invasions of privacy from any company that serves the public, such as credit card companies, banks, hospitals, insurance companies, security firms, medical laboratories, satellite imaging companies, and more.

Giving the telecom companies amnesty sends the wrong message. It says that service providers can break the law and violate the rights of their customers without consequence because the federal government will protect them. That would have a wide ranging and devastating effect on the future of liberty in this country. It also clearly runs counter to the Fourth Amendment.

But it is also reasonable to understand that the telecoms were under great pressure to assist the administration in fighting terrorism. Some allowance for the mood of the country at the time, plus an acknowledgement that the FISA law had not been modernized for current communication technology, seems in order.

What should have been done

Here’s what a real “compromise” FISA bill should have done (besides bringing the act up to date for current technology):

1. Stop illegal monitoring. The system of FISA warrants is inherently workable. Though some adjustments may be necessary, there is no need to bypass it.

2. Within one year, require telecom companies to notify all customers whose communications were illegally tapped under the NSA program, except in cases where the government can get a “retroactive” warrant from the FISA court.

3. Issue an official apology from both the government and the telecom companies to those who have been illegally monitored.

4. Give notified customers the option to be included in a combined class of complaintants. All suits will be combined into one.

5. Cap the total damages which can be awarded to the entire class of those affected.

6. Encourage the telecom companies to settle the case and pay their customers compensation, rather than going all the way to trial.

7. Require the government to provide loan guarantees or some financial assistance to the telecom companies in order to spread out the expense for at least part of the payout.

8. Clarify the FISA bill to make sure that nothing like this ever happens again.

If the actions to revise FISA had included the points above, they would have balanced the interests of the three relevant parties: the telecom companies, the law enforcement agencies, and the citizens. Alas, what we ended up with gives very little consideration to the citizens and the lion’s share to the telecom companies.

Epilog: the Founding Fathers versus the legacy of Nixon

The United States was founded by a group of people seeking to restrict the power of government over its citizens. They were particularly wary of the Executive branch, because the King of England had ruled over them by decree. The Constitution is structured primarily to limit the power of the President over the people and their property.

Though put to the test at times, this concept of limited executive power endured for nearly 200 years, up until the Nixon administration. The Nixonian view of the Presidency was that anything the President does is inherently legal, because he is the President. It’s a strange kind of circular logic that sounds strikingly similar to that of the monarchies from which the American colonies fought to escape. The current Bush administration has been staffed by many of the same people who cut their political teeth in the Nixon administration, and their concept of executive power has remained intact. It is a treacherous view which goes against the very principles that the country was founded upon.

The only good thing to come out of Nixon’s perspective on executive power was that Congress gained a renewed sense of responsibility to “check and balance” the President. The Special Prosecutor law was designed as a way to investigate the President when he strays into illegal action, as had happened with the Watergate scandal. And the FISA law was a direct response to Nixon’s illegal wiretaps of US citizens.

The tragedy of the current episode of Nixonian resurgence is that this time, the Congress is not stepping up to reassert its Constitutional responsibility to balance out the President. Instead, our Congressional representatives just roll over to his every whim. It seems an appropriate time to ask why that is.

Why would so many representatives in the opposition party vote to support a bill backing an unpopular President and giving amnesty to companies who clearly broke the law, violating the rights of the very citizens who those Congressmen and Congresswomen claim to represent? The only way that makes sense is if those members of Congress feel more compelled by, or beholden to, interests other than their constituents. So much for a government of, by and for the people.

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NOTE: Glenn Greenwald has a great blog following this issue. Among the fantastic commentary is this clip from Keith Olbermann’s show:

UPDATE: Senators Dodd and Feingold issued a joint statement announcing their intention to block or modify the FISA bill, and urging their colleagues to do the same.

Now that we know who the candidates will be in November’s general election, I am looking forward to hearing them state their positions and make their cases to the American public. But the primaries demonstrated that the news media are falling far short of asking the important questions which voters can use to inform themselves. So, like many American voters, I got to thinking about what I would ask the candidates if I had the opportunity.

The first thing I know is what I wouldn’t ask. The candidates can be assured that I don’t care who their preachers are, were or will be. I don’t care if the candidates are elitist or folksy, athletic or clumsy, young or old, man or woman, or black or white. I don’t have the slightest doubt about their patriotism, so I won’t ask any questions suggesting that I do. In short, I don’t care about any of the things that the mainstream media outlets tell Americans is important in this campaign. I want to know where the candidates stand on the issues we face as a country and how they’re going to address them.

So, I’ve written out my own series of questions. If I could sit down with any of the candidates, or even receive a written response to a detailed letter, this is what I would ask. If you have your own questions, I encourage you to post them as comments. Who knows… if we can put together a good, refined list, maybe we can get some answers.

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1. Iraq. How do you define “success” in Iraq and how will we achieve it? Once that criteria is met, what will we do with our forces, our private contractors, and our diplomatic mission there?

2. Health care. A survey by the World Health Organization in the year 2000 ranked health care in 190 countries. Despite being the wealthiest nation in the world, dedicating the largest percentage of our GDP to health care, and spending twice as much per capita as many of the other nations, the US is ranked only 37th. Most of the top-ranked countries have a single-payer universal health care system. Your plan does not call for such a system. If that’s not the solution, then what can the country do to better care for the health of its own citizens?

3. Biofuels. Recent science indicates that biofuels do more harm to the environment than good, and their increased use is driving up the price of food worldwide. Proponents claim that the technology is getting more efficient. Do you believe that biofuels are a good use of America’s resources? Should the US taxpayers continue to subsidize biofuels, such as corn-based ethanol?

4. Signing Statements. As a Senator, you have passed legislation which President Bush has signed, but then qualified with signing statements outlining which parts of the law he was not intending to enforce. As President, do you intend to use signing statements, and if so, for what purpose?

5. Taxes and spending. In 1913, Congress passed the income tax law, with rates of 1 to 7 percent. Initially, over 99 percent of the population paid NO income tax. Today we have far more taxpayers, almost everyone pays, and the LOWEST rate is 10 percent. Federal tax revenue is over 10 times the share of GDP that it was when the income tax came into effect, yet amazingly, we STILL can’t balance the budget. Despite all that money coming from the citizens, Congress continues to spend more than it takes in.

Where is all our money going? How can any candidate talk about taxes or the deficit without addressing the huge amount of money that our government spends?

6. Enhanced interrogation. Imagine this scenario: a high-ranking US soldier, with knowledge of battle plans and tactics, is captured overseas by an enemy force. His captors release a video claiming that they will interrogate the officer using the exact same techniques that have been employed by the US Military in Guantanamo Bay, and by the CIA’s proxies in extraordinary renditions to third-party prisons. Does the US have any legal or moral ground from which to oppose such techniques, or have we effectively lowered the bar for the treatment of captured foes worldwide, including our own fine soldiers?

7. Anti-terrorism laws. It has come to light that many of the measures passed in the wake of 9/11 to make it easier for law enforcement officers to thwart terrorist attacks have been used for other purposes. By broadening the definition of “terrorist”, government agencies have been able to make arrests, obtain citizens’ personal records, seize documents, tap phones and internet connections, and even hold people without charge; all without the need to acquire a warrant or show probable cause.

Is this an appropriate or necessary use of counter-terrorism laws? If so, why? If not, what safeguards can be implemented so that average US citizens do not get swept up in the counter-terrorism dragnet?

8. Guantanamo Bay. What should we do with the facility and prisoners at Guantanamo Bay, and when?

9. Undeclared Wars. The Constitution says that only Congress can declare war, but the War Powers Act allows the President to authorize a limited commitment of troops without such a declaration. The last seven presidents have used the Act to undertake extensive military operations around the globe, some of them lasting years and costing thousands of American lives.

Do you believe that the President has the right to authorize military action, other than the direct defense of an attack on US soil, without a formal declaration of war by the Congress? If so, in what cases would you authorize such action?

10. Point of entry searches. The Ninth Circuit’s recent ruling in United States v. Arnold allows Border Patrol agents to search and seize the laptop computers, cell phones and other digital devices of anyone entering the country, including US citizens who are not suspected of any crimes. The agents can review, copy and store the data without limitation.

Privacy groups argue that this is an unconstitutional infringement of people’s rights. Business groups worry that the policy could expose trade secrets. The issue has wide-ranging implications, because if a person anywhere in the world emails private information to someone who later enters the US, the person carrying the information may be held liable for exposing the data.

Do you agree with the ruling? If so, why? If not, what will you do to reverse it?

11. The Federal Reserve. The Fed has been in the news a lot recently. The organization has been battling the economic downturn by lowering interest rates, addressing the credit crisis, and bailing out a major financial institution. Some of these decisions have been controversial, yet the US Government is only peripherally involved. Whether or not you agree with the Fed’s recent moves, does the organization’s semi-autonomous nature give the US taxpayers too little oversight of its actions? Should an organization which holds so much power over the economy be allowed to operate largely outside the bounds of representative government?

12. The tax code. The US tax code is one of the most complicated in the world. Does it need to be, and if not, what can be done to simplify it?

13. The Free Market. Is a free market the same thing as an unregulated market? If not, how do you maintain a balance between appropriate regulation and a business-friendly environment?

14. Public works and infrastructure. The country has suffered some high profile failures of major infrastructure in the last decade. It’s widely agreed that we’re long overdue to address some of these issues, but with the country showing a record budget deficit, how do we afford it?

15. Poverty. We’re the richest nation in the world, yet we have over 32 million people living below the poverty line. What are the root causes of poverty in this country and what can be done to address them?

16. Security vs. Liberty. Can a truly free society also be the safest, or are they mutually exclusive? Is some level of insecurity simply the price of liberty?

17. Intelligence failures. The US intelligence services failed to foresee the end of the Cold War, failed to uncover decades-long foreign spying operations in the US, failed to prevent the transfer of US nuclear technology abroad, and largely got the story wrong about weapons of mass destruction in Iraq. It is not disputed that US intelligence agencies also had significant knowledge prior to 9/11 that Al Qaeda terrorists were in the country and determined to attack. Do you believe that enough has been done to address the intelligence failures that led to the attacks not being prevented? What would you do to address overall problems in the intelligence apparatus?

18. Politics of Fear. Nobody questions the need to address the threat of foreign terrorism, but statistically, Americans have a much greater chance of being struck by lightning, and about 1000 times greater chance of being killed driving a car, than falling victim to a terrorist attack.

Yet the country has completely changed it’s policies, redirected its resources, curbed civil liberties, and even sent our brave men and women off to die, all to avoid a threat that doesn’t even rank among the top 50 to American lives. If the goal of our enemies is truly to “terrorize”, then haven’t we handed them their victory by our own fearful reaction?

19. Attorney General. Of the last 15 Attorneys General of the United States, more than half have been involved in controversies over their roles relating to the Presidency. Whether it be ethical questions, charges of politically biased prosecutions, or inappropriate ties to the administration, the position of Attorney General seems to be a lightning rod for controversy in our system of governance.

As the person responsible for investigating potential wrong-doing in the Executive branch, should the Attorney General be a presidential appointee? Doesn’t that violate the principle of checks and balances amongst the branches? How can we ensure that the Justice Department remains a non-partisan instrument of justice rather than an instrument of executive policy?

20. Defense spending. The Cold War has been over for 20 years and the US is the world’s only remaining superpower. Yet the country continues to spend more on defense than ALL other countries in the world COMBINED. Is that necessary, and if so, why?

21. DNA Evidence. There have been a number of high-profile cases recently where citizens who were convicted of heinous crimes have later been exonerated by DNA evidence. Because the use of DNA evidence is a recent advancement, it is almost certain that Americans in the past were wrongly convicted and killed by their government. But the effort to exonerate convicts, some of whom are awaiting a death sentence, relies on independent organizations and private contributions. Do you favor government funded DNA testing to confirm the convictions of inmates on death row? How do we assure that American citizens are not wrongly arrested and convicted of heinous crimes?

22. World standing. By almost every measure, America’s standing on the world stage has fallen dramatically in the last five years. Do you think that matters, and if so, how would you reverse the trend?

23. Foreign aid requirements. A little more than one percent of every American’s tax dollars goes to aid foreign countries, yet some of those countries take actions that are not in keeping with our values or interests.

Should aid to foreign countries be conditional? For example, if a receiving nation fails to make progress towards peace or human rights, should we reduce our aid? If we catch an ally or supported nation spying on us, or stealing our state secrets, should US aid to that nation be cut off?

24. Pre-emptive war. Although Iraq did not attack the United States, the President and the Congress authorized the use of force against Iraq based largely on that nation’s past aggressiveness and the possibility that it had acquired weapons of mass destruction.

By that standard, can we not justify pre-emptive strikes against dozens of nations on the planet, or conversely, can’t any other nation use the same justification to attack the United States? In the big picture, how does the shift to a policy of pre-emptive war affect the security of US citizens and the world at large?

25. Foreign oil. As is clear from the effect of gas prices lately, our nation has a severe dependence on foreign oil. We are by far the world’s largest consumer of it. Besides the economic effects, oil has become a security issue, because we are forced to defend our supply. How would you address the nation’s dependence on foreign oil in a lasting, meaningful way?

26. Supporting dictators. The United States bills itself as a paragon of democracy, yet we have repeatedly supported dictators and oppressive regimes around the world. It usually comes back to bite us, and it breeds a great deal of resentment in the people who are forced to live under those regimes. A long list of bad characters, including Manuel Noriega, Sadaam Hussein, and even Osama bin Laden were all at one time supported by American tax dollars, ostensibly to further our own interests. When is it OK to support dictatorships or oppressive regimes abroad?

27. The drug war. Statistics from the drug war are not encouraging. In the decades since the battle began, the pervasiveness of use, potency, availability, number of drug-related crimes, and prison population have all gone up, while the average cost of drugs has generally declined. Critics of the current US drug policy argue that the lessons of alcohol prohibition were not learned and applied to national drug policy. At the same time, a number of states have decriminalized the use of some drugs.

Do you believe that our current federal drug policy is effective and in the best interest of US citizens? If not, what would you do to change it?

28. Afghanistan. By most accounts, the coalition forces are losing ground in Afghanistan. There is a Taliban resurgence, widespread corruption, rising opium production, greater difficulty getting our allies to commit troops, and still no sign of Osama bin Laden. What can we do to make sure that our efforts in Afghanistan are successful?

29. Deterrence. A large portion of the US defense strategy is based on the concept of deterrence. That is, other nations should consider the severe consequences for themselves and their people before attacking the United States. But the most dangerous foreign threat to US interests in the last decade has come from groups which do not depend on nation-states and whose attackers seem to care little for their own lives. Is the policy of deterrence an effective counter to ideologically-based terrorism? If not, how do we defend ourselves?

30. Border security. Our international airports have no-fly lists, bomb screeners, metal detectors, x-rays, cameras, a full complement of security personnel, and many other security measures to assure that not even one potential terrorist can enter the country undetected. Yet, by recent estimates, more than one thousand people each DAY enter the US illegally over our southern border. Setting aside the issue of immigration policy, isn’t the porous nature of our borders simply a security threat? What would you do to address that problem?

31. Campaign finance. The influence of lobbyists and powerful special interests has been a hot topic in Washington and on the campaign trail. Two states, and many municipalities, have tackled this problem by introducing a system of 100% publicly-financed campaigns. The results, though early, are quite promising. Is there any reason that we shouldn’t move to public campaign financing on the Federal level? If the people we elect are truly OUR representatives, then why are they allowed to take even one dime from special interests? Isn’t that just legalized bribery?

32. War reporting. The Iraq War has largely fallen off the radar of American media outlets. Part of this is due to the fact that the Pentagon places restrictions on what the media can cover. Some argue that the reason we don’t allow correspondents to report freely from the war zone, or film the homecoming of flag-draped caskets, is because we don’t want to risk eroding support for the war effort. But in a democracy, isn’t an informed electorate exactly what we want, so that if knowledgeable Americans decide that their sons and daughters should no longer be dying for a particular cause, their government will respond to that decision and withdraw the nation from the conflict? Put another way, when the military or political goals diverge from the interests of the populace, which takes precedence?

33. Climate change. Do you believe that combating climate change is a goal that the US government should undertake, and if so, how?

34. The Bush Administration. What policies, if any, implemented by the current President Bush do you admire and/or agree with?

35. Pardons. If you become President, and members of the former administration are indicted or convicted of crimes committed while they were in office, will you pardon them?

36. Warrantless wiretapping. The Bush administration’s warrantless wiretapping program, which monitors the communications of Americans without a court order, has been roundly criticized by civil liberties groups. The Congress is now poised to grant retroactive immunity to the companies who allowed the illegal monitoring to occur. Do you agree with that policy, and if so, why?

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That’s all I’ve got for now. Feel free to post a comment below to add your own.