The Darabont diremption

There's an article in the FT, by Professor Geoffrey R. Stone of the University of Chicago, on civil liberties in the US. The article is interesting in that, while critical of a piece of new legislation and of the support for it by some Democratic senators and congressmen, Stone gives a measured assessment of the state of civil liberties overall. His article is, unfortunately, behind a subscription wall, but I will give a substantial excerpt:

On August 5, President George W. Bush signed into law legislation that amended the Foreign Intelligence Surveillance Act of 1978 (Fisa). This new legislation authorises electronic surveillance of international telephone conversations and e-mails, even if one of the participants is an American citizen on American soil, as long as the intercept is undertaken for foreign intelligence purposes and is "directed at a person reasonably believed to be located outside of the United States". The law requires neither a search warrant nor probable cause to believe that the target of the investigation is a terrorist or even an associate of terrorists.

In effect, this legislation ratifies the secret surveillance programme that Mr Bush unlawfully implemented in 2002. It could not have been enacted without the support of a significant number of Democratic senators and congressman. Many of the Democrats who voted for the law did so despite their prior criticisms of the Bush surveillance programme, despite the consensus view among legal scholars that that programme was unlawful and despite a federal court ruling declaring it so. How, then, could these liberty-loving Democrats support this legislation?

Most of the argument about the legality of the secret Bush programme focused on the fact that it violated Fisa. Amending Fisa makes that objection disappear. Of course, this does not excuse the prior legal violation, but it does now make lawful what previously was prohibited.

The real reason these Democrats supported the legislation, however, is that the president outmanoeuvred them politically. In effect, Mr Bush cast the issue as follows: "If you deny me the authority to use this form of surveillance and there is then an attack on the US, it is on your heads." The Democrats caved in because they were afraid to defend individual liberties in the face of the president's browbeating. They should be ashamed.

Stone then goes on to say that 'fear-mongering' has marked other wartime episodes. He gives examples of legislation from 1798, the Civil War, the two World Wars and the McCarthy era, that were invasive of basic freedoms. But Stone's view of how things stand right now is quite sanguine:

The legislation amending Fisa is unwarranted, reckless and maybe unconstitutional. But the overall state of civil liberties in the US, viewed in historical perspective, is surprisingly strong. There are no internment camps for American Muslims, no suspensions of habeas corpus for US citizens, no laws prohibiting criticism of the war in Iraq. This may 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 such as 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 criticising the president. Where battle lines are drawn is critical.

By contrast, consider this from the film director Frank Darabont. He's remaking Ray Bradbury's Fahrenheit 451, a dystopian tale about a world in which firemen no longer put out fires; they burn books. Books are forbidden and reading them is a punishable offence. Darabont has a view about the story's current relevance:

Guy Montag burns books while prosecuting, and in one instance killing, those who cling to them.

Welcome to President Bush's America, said director Frank Darabont, a culture that proves that there is more than one way to burn a book.

"There's always somebody who's trying to take away your right to think for yourself or express yourself and call you unpatriotic if you don't believe their bullsh--. That's what's going on now," Darabont asserted at last month's Comic-Con... "Our democracy is tottering on its last thread right now, and people don't really notice because, as Ray Bradbury predicted 50 years ago, they're too frightened or they're too distracted to notice..."

He made a movie I really like, but how stupid can you get? Darabont lives in one of the world's great democracies, in conditions in which books have never been more abundant or more easily available. And he gets to make just the movie he wants to about a world in which books are forbidden. But never mind - however things may seem, there's another type of book-burning going on. (Fahrenheit 451 link via Clive.)