Over at Balkinization, Jack Balkin muses over the larger meaning of the passage of the new FISA legislation.

"You may still be wondering how George Bush triumphed, given that he has almost no credibility or clout remaining. My answer to this question is that quite apart from the natural cowardice of substantial segments of the Democratic party in the House and Senate, there is a far larger development going on. Let me say a few words about what that is. Sandy Levinson and I have noted previously that we are in the midst of the creation of a National Surveillance State, which is the logical successor to the National Security State. And we have noted that, like the National Security State before it, the construction of this new form of governance will be a joint effort by the two major parties. It so happens that in 1947, when the National Security Act was passed, the Democrats controlled the Presidency while the Republicans controlled Congress. In this case it is the reverse. But the larger point is that both major political parties are committed to the build up of surveillance programs and technologies for purposes of security and the delivery of government services. We are going to get some form of National Surveillance State. The only question is what kind of state we will get. As of right now, it looks like we will get one that is far less protective of civil liberties than we could have gotten. Some of the new features of the surveillance bill have sunset provisions, and others may be altered through amendment if and when the Democrats take the White House. Still the fact that Barack Obama ended up supporting this bill is not particularly good news."

 Go read the whole thing.

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