Halperin and Zick on FISA

Mort Halperin backs Obama on the FISA bill.

People who know much more about communications privacy than I do (James Wimberley, for example) oppose Barack Obama’s decision to vote for the bill that will come to the Senate floor this week. On the other hand, Mort Halperin supports it, and it’s hard to question Halperin’s expertise or his devotion to the cause. My tentative conclusion is that this is a tough issue and that the moralistic heavy breathing about Obama’s decision is misplaced.

Brian Zick is another well-informed dissenter from my view:

You are grievously mistaken when you declare that “All of the damage done by the passage of the bill will be undone by the election of Barack Obama as President.”

The text of the immunity provision expressly prevents a court from judging legality of the telco behavior, and substitutes instead an unreviewable assertion of legality by a number of vaguely defined someones in the Executive Branch. The only thing the bill allows a court to do is determine, yes or no, whether that self-serving assertion of legality was in fact made.

In the doing, the bill pointedly contradicts the Supreme Court decision in Boumediene, wherein the Majority explicitly stated that it is the Judiciary, not the Executive and Legislative branches, which determine what the law is. More to the point, the bill effectively declares that Marbury v Madison no longer applies and courts do not have ultimate authority to adjudicate behavior. And the upshot is that the bill quite literally codifies the Nuremberg Defense into our jurisprudence – (the telcos get to tell the court, by a showing of a letter from the Executive Branch asserting legality, that they “just followed orders”).

Beyond the immunity provision, the Legislative and Executive Branches, with this bill, are colluding to eviscerate the 4th Amendment. And the bill codifies into law Richard Nixon’s infamous remark to David Frost, “Well, when the president does it that means that it is not illegal.”

This statement by Nixon was made, not so by the way, in an answer responding to David Frost’s question about the “Huston Plan”: “… which advocated the systematic use of wiretappings, burglaries, or so-called black bag jobs, mail openings and infiltration against antiwar groups and others. Some of these activities, as Huston emphasized to Nixon, were clearly illegal. Nevertheless, the president approved the plan.”

Frost goes on to note, “… the president’s approval was later to be listed in the Articles of Impeachment as an alleged abuse of presidential power.”

So now with the FISA bill, the United States Congress would be codifying into legal acceptability the identical behavior – literally the identical behavior – for which it once would have impeached a President.

In addition, the bill provides a precedent allowing any other conceivable (and inconceivable) Executive Branch lawbreaking. And in the doing makes the rule of law a class-based proposition. And it institutes the legal foundations of Orwell’s Big Brother.

The Declaration of Independence enumerates several reasons for the colonies separating from the tyranny of King George, and some of those very same reasons identically apply to this FISA bill:

He has refused his Assent to Laws, the most wholesome and necessary for the public good.

He has obstructed the Administration of Justice, by refusing his Assent to Laws for establishing Judiciary powers.

He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation:

For depriving us in many cases, of the benefits of Trial by Jury:

For taking away our Charters, abolishing our most valuable Laws, and altering fundamentally the Forms of our Governments.

The damage done by this bill is to the fundamental underpinnings of our constitutional democracy. No matter how nice a guy he may be, giving an Obama administration the authority of King George does not remotely undo the damage done by George Bush.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com