A Heartbreaking Work of Staggering Cynicism

There have been many terrible, abhorrent, un-American, unacceptable, and unconstitutional laws passed over the last seven-and-a-half years (The Patriot Act, the AUMF, and the Military Commissions Act come immediately to mind), but today’s vote to codify the Bush Administration’s illegal surveillance program could top them all.

I have many reasons to feel that way; only one of which is the red raw emotion and strong sense of betrayal I feel as a Congress supposedly controlled by Bush’s opposition bends over backwards to give a president with a record low approval rating everything he could have ever wanted—even after so many of the Democrats’ own rank and file worked so hard for so long to fight the villainous activities of Republican rule.

As Senator Russ Feingold has pointed out, there are numerous ways in which this bill seriously erodes our Constitutional protections against unlawful search and seizure. The law provides little protection against reverse targeting, no prohibition of bulk collections, a giant loophole that allows intelligence agencies to spy without FISC approval virtually without end, no limits on the use of illegally obtained evidence in court, and few protections for citizens inside the US that correspond with parties outside of our borders.

As I have written in the past, the debate about changes to FISA has gone forward with little respect for what should now be common knowledge: The Bush Administration began its expansion of warrantless domestic surveillance within weeks of taking office—seven months before the attacks of 9/11/01. This is almost certainly (you know what, never mind “almost”—it is certainly) a program or collection of programs designed with an intent other than protecting America from foreign terrorists, and likely has made the fight to shield America from future violent acts more difficult.

There have been published accounts of how the Bush Administration used spy agencies to investigate journalists and their contacts. I would deem it likely that the White House used illegally obtained information to target Democratic politicians and civil organizations. It is even believed that the hospital contretemps between John Ashcroft, Andy Card, James Comey, and Alberto Gonzales was provoked by White House orders to illegally use intelligence agencies to spy on American citizens inside the US without a court order.

Also noted in the past, a majority of Americans oppose retroactive immunity and warrantless domestic surveillance. Democrats who fall in with the Bush Administration today are actually not only stepping on the Constitution, they are stepping across the line that divides the will of the American people from the interests of wealthy telecom executives and a political party that is bracing for record losses this November.

Many Democrats will also vote today to side with Bush and Cheney against the judgment of what’s left of this country’s independent judiciary, which, almost every step of the way, has tried to uphold the Fourth Amendment, force adherence to the original FISA restrictions, and insist that the White House turn over evidence explaining the timing and scope of their illegal spying endeavors.

Congress and the President will also be ignoring the advice of countless constitutional scholars who, like Jonathan Turley, have labeled this bill an act of “political convenience—not compromise” that shows “not an ounce” of respect for the Fourth Amendment. Democrats today will also turn a deaf ear to the calls of noted Americans such as Studs Terkel, who, having experienced nefarious government repression himself, has challenged the leadership to let other Americans who believe that they have had their rights abridged have their day in court.

And it is that day in court, and the very real probability that with the passage of this devilish capitulation none of us will have one, that has me thinking this the very darkest day of a very dark decade. Without a loyal opposition loyal to the interests of the American people, or a body of elected officials loyal to the oath that they took to protect and defend the Constitution, without a professionally (as opposed to ideologically) staffed Justice Department loyal to the rule of law instead of to the man that approved their hires, it is only through concerned citizens and through the civil courts that any of us can hope to uncover what really took place behind the thick, green glass of the Oval Office or inside the slick marble corridors of power that crisscross the Capitol.

If we are ever to know the who, what, where, when, and how of the Bush Administration’s illegal domestic spying program, we will need the civil suits currently making their way through the federal courts to go forward. It is the cessation of this process—first, foremost, and forever—that drives the urgency Bush and his enablers convey every time they address FISA. Indeed, President Bush has vowed to veto any bill that does not include retroactive immunity for the telecoms, and, by fiat, for him and his staff, too. He could get every other radically permissive spy tool he has ever sought, but without retroactive immunity, he has no interest in making this bill law.

And with the granting of this immunity by his own presidential pen, with a big thank you to Democrats Jay Rockefeller, Steny Hoyer, and many, many more, that Bush will make sure that American citizens’ options for justice will be severely and permanently limited. While any of the other aspects of this law could, theoretically, be revisited by the next Congress—while any of the other egregious laws passed during the Bush presidency can be (again, theoretically) revised, reformed, or overturned by a future Congress working with a different executive—once the government grants immunity, it cannot move to take it back. Retroactive immunity might be permissible, but retroactive criminalization is prohibited by the Constitution.

It is that irreversibility, that unredeemable point, that has me so inconsolably bereft today. Though looking up the page forbids me from saying that I am left without words, looking forward to an America without as many Fourth Amendment protections or without the same respect for the law that existed prior to this vote does leave me without any good explanation. It is a vote that can only be seen through the lens of beltway myopia, a political calculation born of cynicism and hubris. Democratic leaders might think that they are moving forward, putting a difficult national security issue behind them before the November election, but this is a giant step back, a closing of the door on years of actions that so badly need to be brought out into the open, without so much as a glimmer of hope.

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(cross-posted on capitoilette and Daily Kos)

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