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Heat Waves: Burning Off the Fog of the FISA Fiasco

by Chris Floyd
Monday, 23 June 2008
Everyone is free to choose their own priorities. For too few it's holding the Democrats' feet to the fire – over and over and over again – in the hope that they will someday be marginally less weak and corrupt in their undermining of freedom than the Republicans are.

Arthur Silber brings the heat in his latest posts on the FISA "compromise." He cuts through the surface outrage over the Democratic-led, Obama-approved evisceration of the Constitution to expose the even deeper outrages beneath. And he takes on those progressive enablers who denounce critics of Obama's position for their "freshman dorm cynicism" – i.e., calling a shameful action a shameful action, and decrying the Democratic candidate's active collusion in undermining freedom.

But first, I urge you to get on over to Arthur's site right now and put something in the hat for the man. As we've noted often before – and as Silber explains here – the website is his only means of support. He lives on a perilous margin, with failing health, in constant pain, in brutal poverty, yet still manages to produce insightful, eloquent and illuminating essays at an astounding rate. We cannot afford to lose this unique voice and vision. So give whatever you can.


Silber's latest gives us the grim word that "FISA is Only the Prelude to Nightmare." As he puts it [see the original for links]:

...[As] odious and destructive of liberty and privacy as the new FISA "compromise" bill is, there is one perspective from which the momentous to-do about this legislation is very badly misplaced. The selective focus on FISA misses the crucial larger picture in a way that ensures that the ruling class's hold on increasingly tyrannical power will never be challenged -- which is, of course, precisely what the ruling class wants. In one sense, I certainly won't criticize those who protest the FISA legislation so vehemently, because I favor almost anything that throws a monkey wrench into the operations of our monumentally awful and oppressive federal government.

However, and it is an exceptionally large however, if their protests about FISA remain the sole (or even the major) focus of the complaints about the surveillance state, the protesters will make a very large gift to those who wish to oversee, regulate and control every aspect of our lives.

He then quotes Jack Balkin's pertinent observation that Obama approves the compromise because he very much wants to have those broad powers when he is president. As Balkin notes, it is the unheralded part of the bill -- which vastly expands "the executive's ability to wiretap and engage in much broader searches of communications than were permissible under the law before" -- that is actually its most egregious and far-reaching element. The legal immunity for telecoms that helped Bush violate the law is but the icing on this poison cake. Obama can score political points by criticizing this element of the bill, because it doesn't really matter. It's almost impossible that immunity will be stripped from the final bill, as Democratic leaders have already admitted. The big corporations will be protected, and President Obama will have those expanded powers in hand -- to be used only for good, of course.

Silber then moves to a telling point that he has hammered home many times before: the FISA law itself -- not just this "compromise" -- is a forceful, brutal rape of the Constitution, a shocking outrage against liberty that has been going on for decades:

I must immediately interject that to discuss these issues [pertaining to liberty and privacy] with regard to FISA is ludicrous in a much deeper sense. As Jonathan Turley [has explained], FISA itself is a secret court whose very purpose is to circumvent the requirements of the Fourth Amendment. The FISA court is no protection against illegitimate government intrusion at all. But as Turley notes, that we are fighting over whether to grant the executive branch and FISA still more untrammeled authority to disregard constitutional rights is a measure of how far we have already marched toward tyranny...

If we were genuinely concerned about civil liberties and privacy, we would return to the Fourth Amendment and the procedures it requires, and the FISA regime would be abolished entirely. That's right: it would be abolished. No one wants to do that. Too radical, doncha know. That's scary talk, much scarier, it would appear, than the tyranny which daily strengthens its death grip on all our throats. Nonetheless, if you want to understand the nature and scope of the decades-long attack on individual liberty, you had better remember what FISA is.

Watch the layers peel away. The FISA compromise bill is abominable, without question; anyone who supports it cannot possibly be regarded as a serious believer in constitutional democracy. Yet behind this truth is another one, noted above: the FISA system itself is an abomination for a free people. And behind this comes yet another, grimmer truth: the FISA system, either old-style or the new Obama-abetted version, is just a miniscule part of the "endless array of weapons" at the disposal of the National Surveillance State:

With regard to FISA and issues of liberty and privacy in general, let me now ask you a few questions. How long do you think it would take you to identify, read, and understand every provision in every statute, regulation and other authorization that gives surveillance powers to the government? Furthermore: Would you know each and every place to look, or how to determine what those places were? Additionally: With a staff of 20, or 50, could it be done, even if you were provided with limitless time and limitless funds?

I submit to you, without qualification or reservation, that you could not do it. No one could. Consider that most legislators in Washington aren't even aware of much of what's in the bills they so eagerly vote on. Consider the prohibitive length and complexity of legislation that comes before Congress. That's true of what is going on now. If you tried to track down every piece of legislation, every regulation, every administrative agency ruling, and every other pronouncement still in effect that allows the government to surveil and otherwise keep track of you, me, the guy down the street, the woman next door and the man in the moon, based on alleged concern with and the need to protect us all from the ravages of drugs, "illicit" sex, any and all other suspected criminal activity and, natch, terrorism, how on God's green earth would you do it? You couldn't. I further submit to you that the only reason you appear to have some precious remnants of freedom left, and the only reason you remain at liberty, is that the government hasn't comprehensively focused on all the powers it already possesses and hasn't come anywhere close to utilizing them fully and consistently. This is the moment you should fall to your knees and thank whatever gods may be for the miraculous, close to perfect incompetence of the pathetically ineffectual blockheads in Washington.

Silber then goes through just a handful of these sinister instruments, garnered from a few moments of web research, detailing their forceful penetration into every aspect of our lives. In conclusion, he quotes the credo of the Electronic Privacy Information Center, which tries to keep track of ever-spreading ooze of the Surveillance state, a 1928 quote from Justice Louis Brandeis: "The right to be left alone -- the most comprehensive of rights, and the right most valued by a free people." Silber concludes:

In terms of liberty and freedom, the right to be left alone is the most precious value of all. Regardless of what happens with FISA, and even if FISA were abolished altogether, you lost that right decades ago.

And if it is up to the ruling class, you are not getting it back.

Hot enough for you out there? Go read the whole thing, and you'll really start to sweat.


As noted above, Obama has taken some heat for his embrace of the Democrat's deadly FISA farce. Disappointment, even anger, is certainly rife across the progressosphere. For some stalwarts, it has induced a new sense of grim realism, ranging from "ya gotta do what ya gotta do, and I'm glad our guy's got the balls to do what he gotta do" offered by Jonathan Leigh Solomon, to the strange blast produced by Digby, which Silber, in another piece, rightly describes as "We're 2% less shitty than Pure Evil! It's all we've got!"

Digby too has criticized Obama's FISA move, albeit with the usual "I just can't figure out why he would do such a thing" trope, which she has had to apply to virtually every action taken by the Democrats in recent years. [The answer, of course, as Silber has often noted, is plain: they "do it" – sell out to corporations, to warmongers, to authoritarianism and unaccountable power – because they want to do it. It's what they believe in.] Her disappointment in Obama is palatable. Yet in responding to unnamed persons who have apparently deluged her with comments along the line of "a plague on both your houses," she comes back with this:

Democrats have certainly enabled [Republican authoritarians] over the years and will likely continue to. They are politicians, after all, not comic book superheroes. But there should be no doubt to anyone who isn't wrapped up in immature freshman dorm cynicism, that there is a distinct difference between those who believe in the concept of an imperial presidency and those who are simply weak and corrupt. They both undermine freedom, but the first is many orders of magnitude worse than the second.

Perhaps that's not much to work with, but it's all we've got and in the end there will be no one around to acknowledge the intellectual superiority of those who sat on the sidelines, starry eyed and impotent, railing about third parties and revolution, while the world went to hell. (See: Communist Party, Germany, 1932) But hey, everybody has a right to their own kind of therapy and ineffectual whining is as legitimate as anything else. Whatever gets you through the night.

So if you are someone like – well, like me, for instance – who says that Obama's actions and choice of advisers seem to suggest that he will not overturn, roll back or seriously challenge the long-running liberty-devouring, militarist, corporatist trends of the American Imperium, and could possibly even augment some of them – then you're just a German commie from 1932.

Well, I never. And here all this time I thought I was a Buddhist Jacobin in the Reconstruction Era – which is about as historically coherent as her allusion.

Digby seems to think that it was stay-at-home, stick-in-the-mud German Communists who somehow let Hitler obtain power in 1932. She also seems to think that the German Reds were some sort of starry-eyed, impotent "third party" sitting on the sidelines twiddling their thumbs while the Nazis strutted into office. In fact, the Communists were the second largest party in the country in the 1932 Reichstag elections. And in the last free election that year (or relatively free; a succession of right-wing governments had already introduced many of the authoritarian measures that the Nazis later extended), the Communists were gaining support, while the Nazis were losing voters. The Reds were also in the streets, battling it out with Brownshirts, putting their bodies on the line, and paying a heavy price – both then and later. Of course, this kind of thing is not real activism, not like, say, blogging, or clicking a "donate" button at Still, "ineffectual whining" or even "starry-eyed impotence" might not be the best descriptors for people who were beaten, stabbed, shot and later put into concentration camps for fighting fascism.

What really opened the door to Hitler's rise to power was the collapse of the centrist parties' belief in democracy, and their acquiescence – and sometimes active collusion – in tyrannical measures that eviscerated the republic. Here one might attend to The Coming of the Third Reich, by Richard J. Evans, a work described by top historian Ian Kershaw as "the most comprehensive history in any language of the disastrous epoch of the Third Reich."

At one point, Evans describes the events of July 1932, when Nazi stormtroopers invaded a working-class town outside Hamburg which heavily supported the Communists. The ensuing violence – when those impotent Red whiners poured out to defend the community – gave the increasingly authoritarian central government of Chancellor Franz von Papen an excuse to seize control of the "progressive" state government of Prussia – which covered more than half the country – and impose military rule there. Evans notes:

Papen's coup dealt a mortal blow to the Weimar Republic. It destroyed the federal principle and opened the way to the wholesale centralization of the state. Whatever happened now, it was unlikely to be a full restoration of parliamentary democracy. After 20 July 1932 the only realistic alternatives were a Nazi dictatorship or a conservative, authoritarian regime backed by the army. The absence of any serious resistance on the part of the Social Democrats, the principal remaining defenders of democracy, was decisive. It convinced both conservatives and National Socialists that the destruction of democratic institutions could be achieved without any serious opposition.

Historical analogies are just that: analogies, not exact parallels. Still, if one wanted to toss around comparisons between America today and Germany in 1932, one could do worse than point to the way that centrist parties – even "progressive" parties, like the Social Democrats – failed to stand up for democracy in the face of authoritarian encroachments. That would actually make more sense that comparing a few unnamed malcontents to a fantasy image of "starry-eyed," fence-sitting, marginalized German commies of yore.

But Silber finds implications beyond mere historical inaccuracy in Digby's piece: of the keys to the intellectual rot and moral corruption underlying Digby's pronouncements will be found right here: "[T]here is a distinct difference between those who believe in the concept of an imperial presidency and those who are simply weak and corrupt. They both undermine freedom, but the first is many orders of magnitude worse than the second."

This is profoundly wrong, and exactly backwards. Think about this: as history has demonstrated many times, full actualization of a great evil such as the imperial presidency is only made possible by those who are weak and corrupt...

Silber later notes in an aside:

Does Digby mean to suggest -- honestly, truly and seriously, as in a conclusion supported by close study of the presidency in twentieth century America -- that Democrats are opposed on the basis of some kinda, sorta political principles to "the concept of an imperial presidency"? Honestly? Truly? Seriously?

Silber also contrasts the "frantic activity" and "frenzied motions" surrounding the entirely predictable Democratic complicity in the FISA bill – including energetic campaigns that have raised hundreds of thousands of dollars almost instantly to mount election challenges to Democratic supporters of the bill – with the near silence, and total non-action, that has greeted attempts to head off a war with Iran. Silber long ago proposed a plan for a national media campaign to rouse public opposition to military aggression against Iran. He undertook to carry out most of the work himself, or freely turn it over to others with better ideas and more resources – if even a modicum of proper financial backing for such a campaign could be found. With just a couple of posts, any one of the major progressive blogs could have generated sufficient funds to begin such an effort – as we have seen in just the past few days. None did.

That's their right, of course. Everyone is free to choose their own priorities. For some, it's stopping an act of mass murder that could lead to catastrophic suffering and upheaval on a global scale for decades to come. (An act which Obama has continually and forcefully – some might say maniacally – insisted that he is more than willing to perform.) For others it's holding the Democrats' feet to the fire – over and over and over again – in the wistful hope that they will perhaps someday be marginally less evil in their weak and corrupt undermining of freedom than the Republicans are. Whatever gets you through the night, I guess.

But let's end with a question. Which of these priorities is actually much more positive than the other, imbued with a much greater belief in democracy, in hope and change, in the infinite possibilities of the human spirit, in the efficacy of political activism? The one that accepts weakness, corruption and the undermining of freedom as a basic principle, the best we can do, "all we've got"? Or the one that calls upon the better angels of our nature to stop needless suffering – and to end our acquiescence in a system that depends on perpetual war and authoritarian power to maintain its engines of injustice and domination?

photo of Chris FloydChris Floyd has been a writer and editor for more than 25 years, working in the United States, Great Britain and Russia for various newspapers, magazines, the U.S. government and Oxford University. Floyd co-founded the blog Empire Burlesque, and is also chief editor of Atlantic Free Press. He can be reached at

This column is republished here with the permission of the author.

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This story was published on June 23, 2008.