Lessons From a Congress Rushing to Recess

Remember the excuse about not being prepared for class?

“I’m sorry teacher, the dog ate my homework.”

The tally of Democratic votes that extended the power to engage in surveillance without warrants suggests a few DC dogs chomping away on paperwork intended for their masters: 16 Democrats in the Senate voted with Republicans while others were MIA. In the House, 41 Democrats jumped the aisle. As summer fades, we march into further obliteration of rights.

The 1978 Foreign Intelligence Surveillance Act (FISA) mandated warrants before wiretaps or other electronic surveillance, a protection enacted as a result of prior grotesque federal spying activities. Now, apparently, government intrusion is required because of an imminent threat of terrorist attack. But the new legislation transforms the existing FISA and turns National Intelligence Director Mike McConnell and the next attorney general into enforcers of the Bush Surveillance Spy Team, not custodians of security. In fact, since the September 11 attacks, the FISA language has been changed repeatedly to permit more and more surveillance/security checks without due process. This new legislation all but dismantles the remaining FISA safeguards.

The outrageously named Protect America Act empowers government to engage in many forms of surveillance on citizens inside the country without benefit of warrants. The legislation was touted as urgently needed for effective spying on citizens of foreign countries. What it does is to allow spying on any American perceived or known to be in contact with someone overseas. If there is suspicion, even vague, that you are communicating with individuals outside the United States who might be terrorists or simply deemed dangerous enough to be watched, you will be watched too. During the McCarthy Era there was guilt by association, this bill gives us guilt by suspicion of possible contact.

This surveillance extends to monitoring contacts and patterns of phone calls by citizens, collecting business records, and tracking all forms of electronic communication, including e-mail. And forget everything you believed about the rights of the “accused.” This legislation permits actual physical searches without a warrant or accusation. Under the guise of tracking foreign operatives, it is a radical departure even from our own spying tradition. It yields “accidental” data on citizens as a bonus, producing a database about which we will know nothing and over which there can be no speedy or obvious judicial recourse. The bill is confusing and convoluted. It was meant to be just that.

Here’s what really happened.

Two archenemies collided.

Freedom and Fear.

There was a time when people of goodwill were proud to argue that without freedom and its attendant price, control would conquer and we would devolve into a society that would lose much and gain little. These are neither sane nor reasonable times. Fear always defeats Freedom now. The foray over this bill wasn’t even a collision. They never got to the battlefield of fair debate. Senate Majority Leader Harry Reid waved the white flag. Since the new legislation expires in six months, few seemed motivated to fight the crippling tyranny of fear. The majority leader knows better. Legislation passed and signed by the president becomes law that, as a precedent, can become a powerful tool for repression—even if it is not extended beyond its expiration date.

“We did not cover ourselves in glory,” said a Democratic aide in a New York Times article. Republicans insist there isn’t much expansion, that no one is about to nose-dive electronically into our privacy rights. In parental tones, Democrats tell us it will be fixed. Even after the vote, they aren’t convinced they understood the bill. That damn dog was chewing homework again.

Fear doesn’t mean what it used to—the definition won’t appear in the OED, but in a Dictionary of the New Normal. It demands protection from harm, absolute safety, no more attacks or threats of attack. And Freedom’s new definition is not a synonym for democracy, liberty, and citizen entitlements. Freedom syncs with labeling people who write articles like this as unpatriotic.

Why did the Democrats cave? They fear voter reprisals, hostility of Republican colleagues. Most of all, they fear being called soft on terror. For a free press, the ramifications go beyond a chilling effect—closer to a frozen zone. Connect the dots. Journalists and writers count on sources throughout the world. It is not hard to imagine bulging databases amassed on journalists. Too much of our media’s information system is controlled by corporate conglomerates—and increasingly, Rupert Murdoch. Tough reporting and opinions appear on independent news franchises and on webzines and blogs that encourage forceful debate and dissent. This continually evolving and democratic institution is what’s jeopardized by the recent vote. Its technology is accessible and liberating but also invites the spying system to access information and punish through restraint.

Before the term bell rings and members return from this month’s recess, those who voted yes should do their homework. During an undeclared war against France, President John Adams succumbed to his fears and supported the Alien and Sedition Acts of 1798, which broadly curtailed freedoms of speech and press. He remained haunted by his decision until his dying day. The Acts continue to be recognized as a terrible mistake in the record of our democracy. In the 1964 watershed freedom of the press case, NYT vs. Sullivan, the Court referred to the Acts and held that “the attack upon their validity has carried the day in the court of history.” Will our country wait another century to read these words about the recent Congressional behavior?