It’s hard to explain exactly why the FISA bill upsets me so much. But I’ll give it a try. I can break it down into two broad categories. The first is damage. There are different kinds of damage. Running up enormous debts does damage to future taxpayers, among other things. It’s one thing if you run up debt to builds roads and bridges and do medical research that will be useful to future generations. But if you just run up debt to blow stuff up it doesn’t help future generations at all. They’ll have to pay to rebuild all that stuff. Some of them will, anyway. But, who knows, maybe we’ll have stupendous economic growth and mitigate the damage from Bush’s economic policies. Most of the damage Bush has done, aside from to our nation’s reputation, has been reversible even in the short-term. He’s set a bunch of terrible precedents and those precedents are dangerous. But, at least in theory, we can set new precedents that supersede the bad ones. We can pass new laws and regulations and enforce them that make much of what Bush did illegal. But that leads to the second thing that really bothers me.
The FISA bill legalizes illegal behavior. And it does it in a way that will prevent us from ever knowing the extent of the illegal behavior that we are legalizing. If we knew the extent of the illegal behavior we’d probably make it even more illegal than it was before. But we’ll never get to make that judgment…because we’re making it legal. When Iran-Contra was revealed, we investigated it. We actually learned most of what happened. And we didn’t decide to retroactively make it legal to ignore the statutory will of Congress. It’d be more accurate to say that we gave Reagan and Bush a pass, but we reiterated that the law should not be broken. Americans will argue over whether it was mistake to give Reagan and Bush a pass, but how many people believe we should have been kept in the dark about what happened?
And, in any case, the law remained the law. If Congress said you cannot spend money to arm the Mongolians for an invasion of North Korea, then it was still a crime to arm the Mongolians. Twenty years later, we’re not so sure that Congress can pass laws that limit the executive branch that will be enforceable. A big reason for that is that a lot of the people that were involved in Iran-Contra came to power in the second Bush administration and they interpreted the law in a new and unprecedented way.
So, there was a cost to not enforcing the law back in the late eighties and early nineties. That cost was the erosion of the separation of powers, or the very ability to enforce the law. That’s the kind of precedent that we’re setting again. Only, this time, we’re not even getting the facts. This is a very dangerous erosion of the rule of law and the power of Congress. So, these are the reasons that the FISA law is so disturbing. It creates irreversible damage. Destroying the truth forever is not a good idea. It’s an especially bad idea when we have a recent history that demonstrates that real damage is done to our system of government when we look the other way at executive overreach.
There are huge problems with the FISA bill that relate to privacy and opportunity for abuse. But the retroactive immunity portion of the bill will deny us from having the facts. And without the facts, we can’t have an honest debate about the correct remedies and the correct balance between liberty and security.
