In Praise Of Warrantless Wiretapping

People have been disillusioned or angered by Barack Obama's vote for the latest FISA bill. Brother Tim, for example, Zoey & Me, and Still Life Living are in those camps, and they're thinking bloggers who deserve more explanation than the press or Congress is likely to give. I will attempt to shed some light on the murk, and because of my past work and circumstances am in position to do so. First, let me lower your expectations: only 30% of Americans believe in evolution. Roughly the same percentage of people who've gone to college. The smart thing for liberal-leanin' people is to lay in the good liquor and ammo, secure the perimeters and wait for things to get worse. We could very well fail on rolling FISA back.

While strongly supporting enhanced privacy rights and being part of a "Get FISA Right" group which generates hundreds of mails to the Obama campaign per day, I know the fight for privacy rights must occur over a long term, can best be fought in context of an intrusive, ineffective, irresponsible government, and that an enhanced, up-to-date rights package will eventually be won. Here and now, pertinent details make the controversy far less black and white than one would think. In short, the eavesdropping has been longer and far more extensive than commonly known--so extensive by now that voting the FISA bill down wouldn't have actually changed any surveillance practices. To a slight extent, the new bill slightly reigns in, or procedurally formalizes, what was happening.

You probably remember back in late 2001 when the national press announced the terrorists had been recorded on September 10th of that year, relaying code words to each other like "the match is set for tomorrow." At the time, I found the admission very curious. How did the government come by those recordings? If they had been monitoring the terrorists that closely, you'd reasonably suppose, gee, maybe they also should've stopped them from hijacking four planes, killing a few thousand people, and toppling the towering symbols of American might. Whatever you believe really happened, somehow the government was subsequently able to find the digital impressions of those terrorist calls and reconstruct them. Either way, it denotes a powerful ability to reach out and touch someone.

America has devoted tremendous resources to collecting data about its enemies, and collection has gotten steadily easier. The only distinction between a phone call and an email is they're encoded differently. Both pass through network backbones and have to be routed to specific addresses; as you know by looking at any phone bill, every call leaves a precise record. The record is logged by a router, and your digital signals are even reported back to you, as is any transaction made with a credit card or online. So if the NSA is tasked with monitoring conveniently amorphous foreign enemies like al-Qaeda, there is no feasible way to do its job without also spying on American citizens who come in contact with its members, wittingly or not. Griping about the tragic, mystifying dearth of good hummus in America could be plotting the next 9/11, and the whole surveillance needs snowball on from there.

I'm not saying the NSA or its new offshoots are only monitoring al-Q or legitimate threats, nor that I agree with Obama's vote on a surveillance bill. I'm saying the poor quality of debate and dim understandings of what the surveillance constitutes are vital problems to be addressed. My purpose is to point out the gap between the ease of monitoring and the difficulty of limiting it in ways which preserve the spirit of the Constitution, and allow the country to reasonably protect itself while respecting and newly defining rights. While most Americans don't want to be spied on, most Americans also fully support the notion of spying on al-Qaeda, or as they might call it, "Uppity Muslims." There's tremendous tension, national existential tension and unanswered questions balled up around how to properly eavesdrop.

While 20,000 or so Obama supporters like me don't like it, I believe that Obama honestly thought voting for FISA was the right thing to do, and I have to admit that when he did, he followed the collective will of 300 million Americans. He said he would filibuster against it because of telecom immunity, and he voted against that part. He said this law does not strike the right balance, he voted for it because it was better than the previous status quo, and he would redress it from a better position in the Oval Office. I believe each of those points. My biggest frustration over his vote was that I think it was a tactically weak move.

Obama is a very smart, principled, ambitious man who happens to be a politician. He's a consensus-builder, has portrayed himself as bi-partisan, and because he wants to get the power to serve his veiled biases, he's pragmatic. Ron Paul, Dennis Kucinich, Ralph Nader hold idealistic appeal, but they couldn't have gotten elected in 1860 much less now. And speaking of which, Abraham Lincoln refused to promise to end slavery after he secured his party's nomination. Yet he ran on an anti-slavery platform! Abolitionists, the progressives of pre-bellum America, hated him for it. Who now argues it would have made no difference to America if Stephen Douglass had been elected instead of Lincoln? Washington, Jefferson, FDR, Teddy Roosevelt, Reagan, and other presidents were pragmatic ideologues. I'm not saying we should grant Obama the stature of Washington, FDR or Lincoln based on what we've seen. I'm just saying we should not write him off for playing necessary politics, the kind all our other presidential candidates had to play.

His mistake on FISA does matter, and we're not going away. He knows that, and nodded encouragingly to us to keep going. It's so easy to get discouraged, so natural to be disillusioned, and living memory says we should be. But this is the only open game in town. We have to build outriggers onto this sinking democracy which can also function as patios, and reacting disproportionately to a relatively small leak in a pontoon isn't very productive. Plugging this one will be really simple. Once the Pugs realize Obama can spy on them, they're going to help us win this issue with rifles and plasters, outcries and buckshots, and we'll see just how fast the ambivalence of strange bedfellows can turn passionate.