So, we should consider recent events in context. The legislation amending FISA is unwarranted, reckless and possibly unconstitutional. Nonetheless, the overall state of civil liberties in the U.S., viewed in historical perspective, is surprisingly strong. There are no internment camps for American Muslims, no suspensions of habeas corpus for American citizens, no laws prohibiting criticism of the war in Iraq. This might not seem like much, but in light of past episodes, the intrusions on civil liberties since 9/11 have been relatively modest.This is so for two reasons: first, Americans have come to value civil liberties as part of their romance with America. Although we are still too willing to make unwise compromises of individual liberties in order to protect (or try to protect) national security, we are much more sensitive to these issues than we have ever been.Second, groups like the American Civil Liberties Union have played a critical role in setting the terms of the debate. By objecting strenuously even to relatively modest limitations, they have prevented the government from proposing more drastic restrictions. Because we are debating whether the government can intercept international telephone calls, we do not have to debate whether it can prohibit Americans from criticizing the president. Where battle lines are drawn is critical.
Far be it from me to disagree with Geoffrey Stone on anything (I'm, uh, not worthy), but I guess I'm not so sanguine about the current state of American civil liberties. The FISA legislation is the proverbial snowflake on the tip of the iceberg when it comes to the Bush administration's extensive dismantling of constitutional, statutory and regulatory checks on executive power.Recent case in point: the arguments proffered before the Ninth Circuit this month by the Justice Department desperately defending the constitutionality of the NSA surveillance program. Despite actual concrete, documentary evidence of extensive datamining and wiretapping, inadvertently turned over during pre-trial discovery, as well as the testimony of a techie describing the NSA program as an open secret among big telco employees, the administration continued to hew to a neither-confirm-or-deny-and-just-trust-us defense.I appreciate Professor Stone's overall argument, and he's certainly correct that, in historical context, things could be a lot worse---but that's no excuse for the Democrats on FISA expansion, and it's absolutely no license to let up on the fight to restore our rights to their fullest expression.