Here’s a great article on the recent history of the civil liberties debate, beginning with the CALEA battles of the 1990s. It gives some interesting details on the formation of CDT.
The big question the article asks is why it’s so much harder today to get the various factions in the FISA debate together in a room and work out a compromise, the way the parties did in 1994. It seems to me that the fundamental difference is that the previous administration accepted the fundamental premise that the government had an obligation to obey the law. So while the Clinton-era FBI pushed aggressively for statutory changes that dramatically expanded eavesdropping powers, and then litigated aggressively for interpretations of the law that expanded them further, it generally accepted that if Congress and the courts ruled against them, they had an obligation to defer to their judgments.
In contrast, the current administration believes, fundamentally, that the need to defend people from terrorism trumps old-fashioned concepts like the separation of powers and the rule of law. So while they’d certainly like Congress to rubber-stamp what they’re pleased to call the “War on Terror”, they’re prepared to ignore the law and peoples’ civil liberties regardless of what the other branches say.
Under those circumstances, negotiation is a waste of time because there’s no particular reason to think the administration will respect the outcome of the legislative process. Worse than that, pretending that the administration takes the law seriously, when it has made it crystal clear that it does not, serves the political ends of the White House by making it clear that contempt for the law has no consequences. When one side in the negotiations has made it clear they’ll do what they like regardless of what the law said, the only reasonable response is the one the House has taken: pass legislation that makes clear that the administration’s actions were and are illegal, and that increased scrutiny is needed. Not until we have a new president who re-affirms his (or her) commitment to the rule of law will it make sense to enter into serious negotiations with the White House.
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