As I celebrate this July 4th weekend — one of my favorite holidays; the anniversary of this website’s birth; and the always joyous occasion of opening a play — my thoughts are consistently drawn back to the pending FISA legislation in Congress and the issue of telecom immunity. This is not unnatural, because the pending FISA legislation is a betrayal of the principles of government which were laid down by our founding fathers more than two hundred years ago. Since I consider the July 4th holiday to be a celebration of those principles and the nation those principles established, I actually consider it a celebration of sorts to take these issues under consideration.

FISA

Here’s the basic run-down on FISA: In 1978, following an in-depth investigation of the unconstitutional and illegal actions of the Nixon administration, Congress passed the Foreign Intelligence Surveillance Act (FISA). Basically, this bill allows the government to perform warrantless wiretapping within the United States for a period of 1 year, as long as the “surveillance will acquire the contents of any communication to which a United States person is a party”. If a United States citizen is involved, then the government must obtain a secret warrant from a top secret court within 72 hours.

And, for all intents and purposes, the top secret FISA court has been rubber stamp since 1978. If you go to FISA and say, “Hey, I want a warrant so that I can do some wiretapping.” Then you’ve got something like a 99.99% chance of getting your warrant.

THE BUSH ADMINISTRATION

And here’s the basic run-down on the scandal: The Bush administration didn’t want to obey the law. So they had legal opinions prepared which basically said “FISA doesn’t actually require what FISA says it requires because FISA doesn’t state the requirement the way that we think it should be stated”. They then proceeded to “allegedly” break the law. And by “allegedly” I mean “unless you actually believe their Bizarro World logic, then they broke the law”.

Now, let’s stop and think about this for a moment: The Bush administration, by deliberately circumventing FISA, basically said, “There are American citizens we want to spy on, but we don’t even want to get permission from a top secret court that pretty much automatically rubber stamps APPROVAL on any requests to spy on American citizens.”

And if that doesn’t scare the crap out of you, then you aren’t thinking hard enough.

The Bush administration claims that this was all about “protecting America” because the requirements of FISA meant that some horrible tragedy could happen while they were waiting for the constitutionally-mandated paperwork to be filed. There are two problems with that claim:

First, if you believe that bullshit then I refer you back to the FISA provision which allows the adminitration to apply for the warrant up to 72 hours after the wiretapping has already started. In other words, the Bush administration could already do the wiretapping now and ask for permission later… but whatever they were doing was so awful they never wanted to ask for permission.

Second, if you tear up the Constitution then a horrible tragedy has already happened.  As Benjamin Franklin said: “Those who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety.” And our Fourth Amendment rights are, frankly, among the most essential of our liberties.

TELECOM IMMUNITY

Which brings us to telecom immunity: The Bush administration wants to give retroactive immunity to the telecom companies they used to perform the “allegedly” illegal wiretapping. There are so many problems with this:

First, the argument is made that the telecom companies had no choice. But they did. Qwest recognized that the Bush administration’s actions were illegal and refused to comply. Bravo to Qwest. If you want to support liberty with your pocketbook, get your phone service from Qwest.

Second, the argument is made that — without telecom immunity — the telecoms might be less willing to help the government perform their surveillance programs in the future. But here’s the thing: Qwest had no problem continuing to cooperate with legal wiretapping programs even while they refused to cooperate with the illegal wiretapping programs. So what this argument really boils down to is that the telecom companies will be less willing to help the government violate the Constitution and illegally wiretap American citizens. You know what I think about that? Good.

Third, it’s ethically wrong. If you or I were to break the law and then go to Congress and say, “Hey, we broke the law. Could you guys change the law and give us retroactive immunity?” We would be laughed at. It’s clearly unjust. It’s clearly nonsensical. And yet that’s exactly what telecom immunity is.

Which means, in the final analysis, it boils down to two possibilities: One, they didn’t break the law… in which case they don’t need immunity. Two, they did break the law… in which case they shouldn’t have immunity.

Either way, telecom immunity is a bad idea.

THE STAKES

Why do I care so much?

Fundamentally because any violation of our Constitutional rights is a direct and meaningful attack upon America. There is literally nothing more dangerous in this world than your own government turning against you. And when your government begins stripping you of your rights, that’s the definition of your government turning against you.

But, more generally, it’s because this is only the tip of the iceberg. For eight years now we have watched the Bush administration systematically disassemble this country. They have engaged in profiteering. They have run roughshod over the Constitution. They have shown a complete disregard for the rule of law.

And there have been no consequences.

People used to say things to me like “Bush is the worst President ever!”, and I would politely disagree. I have a rather deep knowledge of American history, and I would trot out various examples of incompetency or coruption and say “maybe one of the worst, but he’s got a lot of competition”.

But over the past four years, my opinion has shifted dramatically. We have had incompetent Presidents. And we have had corrupt Presidents.

But what makes George W. Bush really stand out from the pack is his amazing ability to be both at the same time; to fail on all fronts at once: To destroy not only our domestic economy, but to ruin our foreign reputation and our ability to defend ourselves. To not only sap the national treasury with the most heinous of cronyism; but to actively erode our civil liberties and most essential rights. To not only govern incompetently and cause the deaths of tens or hundreds of thousands; but to actively assault the Constitution itself and undermine the fundamental principles on which our government operates.

And since the Democrats took control of Congress in 2006 I have patiently ground my teeth in frustration. I have accepted the logic that impeachment is unlikely to succeed and politically inexpedient for a number of reasons. I have been (relatively) content to let the bastard rot out his term in office so that we can then get down to the work of fixing this nation.

But there is a difference between simply not prosecuting Bush and his administration for their impeachable offenses and actively pursuing the exact same policies as the Bush administration. And, frankly, that’s what telecom immunity is.

And what makes it so utterly assinine is that this is completely unnecessary. The Democrats have won three congressional elections in the past year to fill vacant seats; all of them in deeply red districts; all of them with Democratic candidates openly opposing telecom immunity. The voters have already rejected the bogus logic of the Bush administration. The bill was, in fact, already dead in the water.

So telecom immunity is (1) unethical; (2) encourages violations of the Constitution; and (3) has no political value for Democrats. The term “bad idea” is wholly inadequate.

MY DECISION

Months ago, when the issue of telecom immunity was making its first pass through Congress, I wrote to my senators — Norm Coleman and Amy Klobuchar — and told them both the same thing: “I will not vote for anyone who votes for telecom immunity.”

Amy Klobuchar wrote me back and told me that she strongly opposed telecom immunity (which, as far as I know, is the same opinion she holds today).

Norm Coleman sent me a form letter regurgitating the Bush administration’s talking points (which means that Al Franken will be getting my vote this November).

But this puts me in something of a quandary because now Barack Obama has decided that he’s going to vote for telecom immunity. He’s supposedly going to fight to strip the immunity clause from the bill, but if that doesn’t happen he is intending to vote for the bill.

So for the past week or so I’ve been struggling with this issue. If he votes for it, will I vote for him?

And, after a good deal of consideration, I’ve come to the conclusion that I meant what I said when I wrote to Senator Klobuchar and Senator Coleman: I will not vote for anyone who spits upon the Constitution and supports the illegal activities of the Bush administration.

Which means that I may not be voting for Barack Obama. If, in fact, Senator Obama votes for telecom immunity this week, he will not have my vote in November. In my opinion, a vote so blatantly against the Constitution and the rule of law is a vote which disqualifies one from serving in public office.

Even if you don’t feel as strongly about this issue as I do, I urge you to take action during the next few critical days. Let your elected officials know that this is an important issue. Let them know, whether they’re Republican or Democrat, that you find it intolerable to offer up the rule of law and the Constitution as sacrificial lambs. And if they’re Democrats, question the sanity of kow-towing to yet another “compromise” from the Bush administration in which George W. Bash gets everything he wants and the American people get the shaft.