A Pragmatist's view on FISAAll the hubbub is in reality a molehill that they're attempting to make into a mountain. This is scarier than I originally thought possible. Go and read the entire piece.
I'm a former criminal defense appellate attorney. Most of my cases turned on constitutional issues: search and seizure, interrogation methods, ineffective assistance of counsel, police and/or prosecutorial misconduct, and the like. The issues that dominate the news and the blogosphere today are the issues I worked with in the grit and grist of real defendants, real victims, real crimes, real facts.
So please bear with this pragmatist and follow over the jump as she explores why this FISA bill is, to quote the Bard, "sound and fury, signifying nothing."
Folks, if you think FISA is the last bastion of the Fourth Amendment, I have bad news for you. If FISA is indeed the last bastion, the Fourth Amendment is already gone. The current bill will not fix the problem, no matter whether telecoms are given the affirmative defense of acting under color of law. The problem exists in the USA PATRIOT Act, not in FISA.
First a bit of history on FISA. The act was passed in 1979, in the wake of the Church Hearings and other congressional action that exposed and shut down the FBI's COINTELPRO domestic spying program. From the late 1940s through the early 1970s, the FBI was spying on tens of thousands of American citizens, with little or no oversight. What began as a search for communist inflitrators widened into surveillance on political groups, right and left, that were seen as threats. After Watergate and the end of Nixon's "imperial presidency," as it became apparent that the FBI had been used as a tool to stifle dissent, Congress put an end to COINTELPRO with a series of statutes that forbade electronic surveillance except by means of a search warrant.
Bottom line is the Fourth Amendment is no more. Think about that for a minute, or two.
And so it goes.