"No matter how paranoid or conspiracy-minded you are, what the government is actually doing is worse than you imagine." - - - William Blum

August 04, 2007

Jack Balkin

"The Party of Fear, the Party Without A Spine, and the National Surveillance State" by Jack Balkin: (my highlights)

The passage of the new FISA bill by the Senate and now the House demonstrates that the Democrats stand neither for defending civil liberties nor for checking executive power.

They stand for nothing at all.

Conversely, the new bill shows that the Republican Party can get the Democrats to surrender almost any civil liberty-- indeed, to give the President just as much unchecked power as he might obtain under a Republican controlled Congress-- simply by playing the fear card repeatedly and without shame.
And this the Republicans did with gusto in the past few days, with one Senator even suggesting that America would immediately be attacked if the President was not given everything he wanted, no matter how unnecessary the demands, and no matter what alternatives were available.

When the Republican-controlled Congress passed the abomination called the Military Commissions Act of 2006, I criticized Democrats who failed to block it, calling them spineless and cowardly. At least then the Democrats had the defense that they were in the minority. One can hardly say that now. They control both houses of Congress. If anyone could stand up to the President, you would think it would be a political party that had not one, but two separate chances to push back. Indeed, how difficult should it be, you might well ask, to say no to a lame duck President with 28 percent approval ratings? What is the political cost to forcing this spoiled child to compromise?

Behind the current events is a more troubling trend. As Sandy Levinson and I have written, we are in a gradual transition from a National Security State to a National Surveillance State. We pointed out that although the Republicans got first crack at constructing many features of this emerging state, it would be a bipartisan effort. The only issue will be what kind of national surveillance state we would have, and whether government would put in place the appropriate checks and balances to protect civil liberties, prevent the multiplication of secret laws and secret methods of enforcement, and restrain an increasingly ambitious executive.

So far the answers to this question have not been reassuring. Whether controlled by Republicans or Democrats, Congress seems willing to bestow more and more unaccountable power to the President of the United States. The Democratic Party, which has long prided itself on its support for civil liberties, seems altogether to have lost its soul, and the Republican Party, which long contained a strong element of libertarianism and respect for individual freedom-- particularly in economic matters-- has given up any claims to providing a counterweight to a deluded and incompetent President.

The Republican Party of the future appears to be Rudy Giuliani's party-- waving the bloody shirt of 9/11 and making increasingly extreme assertions about the need for concentrating unaccountable power in the executive. This is the Party of Fear. The Democratic Party of the future appears to be a pale reflection of the same, which, afraid of being thought weak, proves itself to be so by repeatedly surrendering our constitutional liberties in the name of a hyped-up and potentially endless state of emergency. This is the Party Without a Spine.

Between the Party of Fear and the Party Without a Spine, there does not seem to be much opportunity to keep the National Surveillance State benign. Nor does there seem to be any political check on the development of an increasingly authoritarian Presidency, which controls the levers of secrecy, surveillance, and military force.

Do not be mistaken: We are not hurtling toward the Gulag or anything that we have seen before. It will be nothing so dramatic as that. Rather, we are slowly inching, through each act of fear mongering and fecklessness, pandering and political compromise, toward a world in which Americans have increasingly little say over how they are actually governed, and increasingly little control over how the government collects information on them to regulate and control them. Slowly, secretly and imperceptibly, the mechanisms of government surveillance are being freed from methods of political control and accountability; and the liberties of ordinary citizens are being surgically removed under a potent anesthesia concocted from propaganda, fear, ignorance and apathy.

I hope the Democrats are justly proud of themselves for their cowardly contributions to this slow-motion destruction of our constitutional system.

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