As I watch Hoyer and Pelosi and others finish the speeches wherein they gleefully pat each other on the back for selling us out, and sit down to the sound of applause from the gallery, I can't help but be reminded of a line from Star Wars of all things, where Padme states on the legislative floor..

"So this is how liberty dies ... with thunderous applause."

This is so sickening.

The FISA debate in Congress has been lengthy and contentious because a small but thankfully vocal minority realizes that the FISA debate has almost nothing to do with the FISA law itself, and everything to do with our tripartite system of government, the Constitution, the rule of law, and whether justice can be bought and sold in America. Calling it a debate over FISA is utterly misleading - the only “problem” with FISA is a language fix needed to address the issue of foreign to foreign communications over U.S. lines - an amendment that has full bipartisan support and would easily pass. The White House, Republicans, and a complicit and compromised bloc of Democrats have refused to make this simple fix without also taking up consideration of two far weightier issues - eliminating court oversight of government surveillance under FISA and providing additional and retroactive immunity for telephone companies that broke the law.

To be sure, the issues could easily be decoupled, a FISA fix passed, and a free and open debate had on the other two issues. The issues are not being debated separately because the pro-pardon lobby wants to leave the FISA problem unfixed so it can use terrorist threats and scaremongering tactics to gain leverage against the staggeringly few patriots (Dodd, Feingold, et al.) willing to stand up for the Constitution and the rule of law.

What the “FISA” debate is really about is whether the Executive Branch will be allowed to spy on Americans without judicial oversight, whether the provisions of the Constitution relating to warrants and probable cause have any meaning anymore, whether the Executive may disregard the law without penalty or consequence (and authorize private companies to do the same), and whether telephone companies can buy themselves a pardon from Congress for breaking the law. Based on reports of an imminent FISA compromise, it appears that the answer to all of these questions is yes. To paraphrase Judge Damon Keith, it appears that our democracy is indeed dying behind closed doors.

Congressional Quarterly reported that newest compromise would grant a telephone company immunity if “there was ‘substantial evidence’ that the companies had received assurances from the government that the administration’s program was legal.” That is a pathetic and transparent an attempt to guarantee immunity without explicitly providing for it, and makes clear that the “compromise” is mostly about political cover. Only a person with no familiarity with the issue whatsoever would have any doubt that the Executive Branch gave assurances that the program was legal. But only in a dictatorship does the Executive get to decide what is legal and what is not. Thomas Paine observed in 1776 that “in absolute governments the king is law, so in free countries the law ought to be king; and there ought to be no other.”

Having helped draft FISA, the telephone companies cannot argue that they did not understand the law and its requirements, which include provisions for absolute immunity for the telephone companies if they complied with the law. They chose to disregard the law, designed precisely to prevent and circumscribe government overreaching, and chose to accept the Administration’s unexamined say-so that it was perfectly legal to hand over their customer’s communications without the required court order. The retroactive immunity that the pro-pardon bloc seeks to provide is nothing more than obstruction of justice, a ham-handed attempt to absolve those involved of consequences for law-breaking, and a last-ditch attempt to ensure that the scope of it never comes to light. In no democracy should the target of a law be able to “authorize” its violation, then pardon the violation, and thereby conceal the extent of the violation.

The pro-pardon bloc argues that the telephone companies deserve immunity because it was the government giving them the order and because the companies cooperated in the interests of “national security.” The “we were ordered to” argument did not work for the Nazis in Nuremberg, the ends do not justify the means, and if the Executive can ignore clear provisions of law and subvert the Constitution without consequence we simply no longer live in a democracy.

The “FISA” debate is not about FISA, it is about our system of government. With alarmingly few exceptions, this Congress has forgotten that this nation was born in the crucible of an oppressive and authoritarian government and that its Constitution was specifically designed to have checks and balances for the purpose of preventing the President from becoming the King. If we allow the President to ignore the law and excuse violations of it - without penalty or consequence - then our democracy is truly dead. Long live the King.

That should of course be "hear" above.