Come back to us, Fake Sinbad.  Come back.

What's the problem with FISA anyway?

Let me be upfront about this: what follows will be interpreted by some of you out there as further apologia for Obama. I don't see it as such. Obama's FISA position concerns me, though it's not for the "constitutional" reasons that seem to upset many people in these parts.

You see, I'm not too worried about the Constitution here. It's true that the Fourth Amendment prohibits warrantless searches. But the Constitution's protections are limited to people inside the Country, not people outside the Country. If I'm calling my next door neighbor, I should be able to rest assured that my rights and my privacy are protected. But if I'm calling someone in Zimbabwe, there's a portion of this conversation that is occurring outside the United States jurisdiction. Is such an international conversation protected by the U.S. Constitution?

The answer is, it's unclear. Perhaps this is why FISA was enacted in the first place in 1978. Faced with the unclear scope of the Constitution, Congress decided to render the question moot by legislatively imposing warrant requirements on the interception of foreign communications. The current FISA bill loosens those warrant requirements, which makes the question relevant again: does the Fourth Amendment require warrants for these searches?

As I say, this question doesn't leave me sweating at night. There are legitimate, tenable arguments for both positions. The truth is, this seems to be a question without a non-arbitrary answer. And quite frankly, whichever way the issue is resolved, the Constitutional implications are virtually insignificant. It's a fuzzy boundary problem.

But what about the erosion of the Constitution?!? Isn't this simply the first step to dictatorship!!? This slippery slope argument, which I hear on this site a fair amount, is Constitutional alarmism. There's a difference between a legitimate question as to the limits of the Constitution, and a total erosion of rights clearly established by the Constitution. The best response to alarmist slippery slope arguments was that given by Justice Oliver Wendell Holmes. In response to a plaintiff who alleged that a ruling against it would pave the road to countless civil rights abuses, Holmes simply said, "Not while this Court sits." I think the Constitutional concerns about FISA fall in the same boat.

At this point, I've got a lot of Obama supporters on my side, and a lot of suspicious people lined up against me. But here's where the going gets tough for me: FISA and Guantanamo are the same issue.

The problems faced by those held at Guantanamo (not counting the legitimate torture problems) relate to the Sixth Amendment rights to a fair and speedy trial, and the Constitutional right to habeas corpus. But do these rights apply to foreign nationals held by the US Government on foreign soil? It's another fuzzy boundary problem, and the resolution of the question has no broader Constitutional implications.

This is where people start demanding that I be thrown off the internets. And this is also where I begin the difficult work on redeeming myself.

For me, the problem with FISA, and the problem with Guantanamo, is not the US Constitution. It is Article 9 of the International Covenant of Civil and Political Rights, ratified by the United States in 1992. It is the Third and/or Fourth Geneva Convention, ratified in 1949. And it is binding customary international law.

The Covenant prohibits the United States from conducting illegal searches and seizures upon anyone. And the Covenant grants habeas rights, and fair trial rights, to everyone. Similarly, the Third and Fourth Geneva Conventions require fair trials "affording all the judicial guarantees which are recognized as indispensable by civilized peoples." There are no fuzzy boundary problem here. The United States is not "eroding" international law around the edges: the United States has abandoned it wholesale. The United States is in open violation of customary international law.

Granted, I think the violations are clearer with respect to Guantanamo: US obligations under the Covenant may be limited by Article 2 to those under the "jurisdiction" of the United States, which clearly includes those being held at Guantanamo, but does not seem to include those at the wrong end of an international phone call. But there is a very real reason why I prefer to point to the ICCPR, instead of the US Constitution, as the source of my FISA/Guantanamo concerns:

For far too long, the United States Government, and its citizens, have assumed that they are above international law. (It's a mindset that is only reinforced in American law schools.) But we will be allowed to ignore international law only so long as the rest of the world agrees to look the other way. And while we flagrantly violate the law, we may be justly and roundly criticized, not for violating our own Constitution, but for renouncing the moral and legal principles that the entire world has adopted.

Obama compromised on FISA, and it made me mad.

Obama was equivocal on guns, and it made me mad.

Obama criticized the Supreme Court ruling on the Death Penalty, and it made me mad.

After all of these things, (and notwithstanding my stealth-snark Apology) I began to wonder why I had supported Obama during the primary.

Then I read this underrecommended post, and I started to remember.

What I liked about Obama was his conviction that, despite the different attitudes and beliefs between the "red" states and the "blue" states, we are at essence more alike than we are different.  

The partisanship model of politics has been in full force in this country for at least the past 30 years.  Democrats and Republicans stress their differences in an attempt to stand apart from their opponents.  Democrats are "in favor" of abortion rights, affirmative action, redistributing wealth through taxation, etc.  Republicans are "opposed" to these very same issues.  So, (says the partisanship model), politics is a jockeying of power to see who can win the policy war and implement their policies over the opposition of their opponents.

But over the past decade, growing numbers of people have been rejecting this paradigm, perceiving that the "defining" policies of Democrats and Republicans should really be considered as fringe issues.  The fact is, there are issues that the entire population can get behind: Growing the economy, increasing the standard of living, improving education and access to health care, etc.  If our government spent half as much energy on these issues as it does on the fringe issues, we could accomplish a lot as a nation.

So I had forgotten the principal lesson of Obama's message: Don't lose sight of the forest for the trees.  Don't get hung up on the fringe issues.  Keep your eyes on the prize.  If one side gains an inch, or loses an inch, on the abortion issue, but we all gain a mile on education, the entire nation wins.

Viewed in this light, Obama's actions these past few weeks seem sensible and noble.  What really matters to you: telecom immunity, or increased health, happiness and prosperity for everyone.  Knowing that in the world of politics there is a finite amount of time and a finite amount of energy, which is the fight to fight?

If your answer to that question is telecom immunity, then you are still locked in the thralls of a partisan mindset.