For all the talk about the 4th Amendment, and protecting the Constitution, for me the FISA fight is not primarily about that. It's about something even more important: the rule of law itself.
NCrissieB has an excellent Diary explaining why the current FISA revisions will do little to damage the 4th Amendment. Along with providing a useful history of the FISA regime, NCrissieBS compellingly argues that the 4th Amendment was effectively eviscerated by the USA PATRIOT Act, and the the current revisions are therefore of little consequence. But this does not mean that the fight over FISA is any less important.
If the rule of law is not secure none of our rights are safe, whether they are written in the Constitution, in statutes, or in the common law. If the law is not upheld, they are all just words on a page. Upholding the rule of law is, in its own right, more important than nearly everything else.
Even though the existing FISA law did not protect 4th Amendment rights, it was the law, and it was ignored, in secret. A contempt for the rule of law has been the hallmark of the Bush administration, and has played a central role in all of its worst abuses. It must be held accountable along with all those who abetted it. Immunizing the telecoms not only permanently undermines the rule of law by letting those corporations who knowingly and willingly ignored the law escape accountability (partly due to the power of their lobbyists), it forecloses one of our best opportunities to hold the Bush administration accountable. And this is the only way that the integrity of the rule of law can be restored.
Just having the next President follow the rule of law will not undo the damage done. If the law does not hold accountable those who ignored it, its credibility is permanently damaged. Those who would ignore the rule of law see that others who did, did so without consequence.
Every time the rule of law is ignored without consequence, is one step closer to dictatorship. We must fight to uphold the rule of law above everything else. It doesn't matter that FISA has never properly protected 4th Amendment rights, it was still a law binding the government which it ignored. Of course letting this go will not , by itself, mean America has become a dictatorship. But if the last seven years have shown me nothing else, I have seen how easily the entire framework of laws that keep our government democratic and accountable can be ignored. You can have the best laws in the world, but if the people manning the institutions required to uphold them (journalists, civil servants, the judiciary, other branches of government) simply do nothing, it makes no difference.
In the end it is not only the particular laws that matter, it is respect for the law itself. The FISA bill is not just a bad law. It undermines all law.
- Cross-posted at
Mucho Politico -