I’ve noted before that the current FISA debate is an example of the goalposts being repeatedly shifted in the direction of ever more executive power and ever less executive oversight. Glenn Greenwald documents just how far the goalposts have been moved over the last 30 years. Back in 1978, the venerable conservative columnist William Safire wrote this of the newly‐proposed Foreign Intelligence Surveillance Act:
Predictably, opponents of warrantless wiretapping cheered; the act seems to require a court warrant before tapping can begin. But nobody is reading the fine print, which adds up to the most sweeping authorization for the increase and abuse of wiretapping and bugging in our history.
Conservatives like to assist law enforcement, and to curtail espionage; we do not like to make it harder for “our side.” But this natural inclination to help the law must be outweighed by a responsibility to protect the law‐abiding individual from the power of government to intrude. And this bill would turn every telephone instrument in every home into a suspected household spy.
Huey Long once said that if fascism ever came to America, it would come in Democratic form; in this bill, Big Brother is on the way, and he is cloaked in the mantle of civil liberties.
Since Safire wrote those words, FISA has been repeatedly amended to further reduce judicial oversight of eavesdropping, most importantly with the Patriot Act in October 2001. The law on the books in early 2006 was even more permissive than the legislation Safire is blasted as an assault on civil liberties. Yet the Bush administration has been so successful at shifting the terms of the debate that even a lot of self‐described civil libertarians are conceding that FISA still places too many restrictions on domestic wiretapping activities. The debate is now between a House bill that further waters down judicial oversight over Americans’ international communications and a Senate bill that virtually eliminates judicial oversight of international calls.
One of the lessons here, I think, is that civil liberties won’t be preserved through compromise. The partisans of ever‐increasing executive power aren’t likely to go away any time soon. If Congress compromises and agrees to further expand executive wiretapping powers, a future president will come back to Congress and argue that the law is still too restrictive and still more compromises are needed. President Clinton did it in the 1990s. President Bush is doing it now. At some point, Congress just has to say no.