Warrantless Wiretaps Revisited
A recently passed bill in the House of Representatives gave the Bush Administration everything it could hope for in terms of retroactive immunity for its partners in the illegal wiretapping of American citizens. I wrote about warrantless wiretaps months ago, and have since only become more convinced of the futility (as a technical issue) of mass surveillance of the “Plain Old Telephony System” because Voice-over-IP telephony can provide an easily established, strongly encrypted, decentralized, and virtually anonymous means of synchronous communication. In my less cynical moments, I am simply amazed that a law which diminishes our Constitutional rights while doing nothing to improve our security from determined adversaries is being seriously considered.
Senator Barack Obama has sadly recalculated his firm opposition to retroactive immunity and warrantless wiretaps, however Senators Russ Fiengold and Chris Dodd have continued to lead the defense of our Constitutional protections and the rule of law. Hopefully they will defeat or postpone the enactment of this deeply flawed legislation. Yesterday, Senator Dodd gave a very good speech on the floor of the Senate, discussing the many disturbing aspects of the warrantless spying, which I’ve excepted below.
Dodd’s speech lays out clearly what happened and why it is so troubling on a political level:
Clear, first-hand whistleblower documentary evidence [states]…that for year on end every e-mail, every text message, and every phone call carried over the massive fiber-optic links of sixteen separate companies routed through AT&T’s Internet hub in San Francisco—hundreds of millions of private, domestic communications—have been…copied in their entirety by AT&T and knowingly diverted wholesale by means of multiple “splitters” into a secret room controlled exclusively by the NSA.
The phone calls and internet traffic of millions of Americans, diverted into a secret room controlled by the National Security Agency. That allegation still needs to be proven in a court of law. But it clearly needs to be determined in a court of law and not here in Senate.
I suppose if you only see cables and computers there, the whole thing seems almost harmless. Certainly nothing to get worked up about—a routine security sweep, and a routine piece of legislation blessing it.
If that’s all you imagine happened in the NSA’s secret room, I imagine you’ll vote for immunity.
I imagine you wouldn’t see much harm in voting to allow this practice to continue either.
But if you see a vast dragnet for millions of Americans’ private conversations, conducted by a government agency that acted without a warrant, acted outside of the rule of law—then, I believe, you’ll recognize what’s at stake here. You’ll see that what’s at stake is the sanctity of the law and the sanctity of our privacy. And you’ll probably come to a very different conclusion.
Maybe that sounds overdramatic. Perhaps some will ask, “What does it matter, at the end of the day, if a few corporations aren’t sued? These people sue each other all the time.”
Others may say, “This seems a small issue. Maybe the Administration went too far, but this seems like an isolated case.”
Indeed, Mr. President – as long as this case seems isolated and technical, they win. As long as it’s about another lawsuit buried in our legal system and nothing more, they win. The Administration is counting on the American people to see nothing bigger than that – “Nothing to see here.”
But there is plenty to see here, Mr. President – and it is so much more than a few phonecalls, a few companies, a few lawsuits.
What is at stake is nothing less than equal justice—justice that makes no exceptions. What is at stake is an open debate on security and liberty, and an end to warrantless, groundless spying.
This bill does not say, “Trust the American people; Trust the courts and judges and juries to come to just decisions.” Retroactive immunity sends a message that is crystal clear:
“Trust me.”
And that message comes straight from the mouth of this President. “Trust me.”
What is the basis for that trust? Classified documents, we are told, that prove the case for retroactive immunity beyond a shadow of a doubt.
But we’re not allowed to see them! I’ve served in this body for 27 years, and I’m not allowed to see them! Neither are a majority of my colleagues. We are all left in the dark.
I cannot speak for my colleagues—but I would never take “trust me” for an answer, not even in the best of times. Not even from a President on Mount Rushmore.
Next Senator Dodd examines the false claims of irreparable harm if civil suits are allowed to continue against telecommunication companies which illegally aided in warrantless spying:
After all, in the official telling, the telecoms were ordered to help the president spy without a warrant, and they patriotically complied. We’ve even heard on this floor the comparison between the telecom corporations to the men and women laying their lives on the line in Iraq.
But ignore that comparison – which, frankly, I find deeply offensive. Ignore for a moment the fact that in America we obey the laws, not the president’s orders. Ignore that not even the president has the right to scare or bully you into breaking the law, though it seems that tactic has proven surprisingly fruitful.
Ignore that the telecoms were not unanimous; one, Qwest, wanted to see the legal basis for the order, never received it, and so refused to comply.
Ignore that a judge presiding over the case ruled that “AT&T cannot seriously contend that a reasonable entity in its position could have believed that the alleged domestic dragnet was legal.”
Ignore all that: If the order the telecoms received was legally binding, they have an easy case to prove. The corporations only need to show a judge the authority and the assurances they were given, and they’ll be in and out of court in five minutes.
If the telecoms are as defensible as the president says, why doesn’t the president let them defend themselves? If the case is so easy to make, why doesn’t he let them make it?
It can’t be that he’s afraid of leaks. Our federal court system has dealt for decades with the most delicate national security matters, building up expertise in protecting classified information behind closed doors—ex parte, in camera. We can expect no less in these cases.
No intelligence sources need be compromised. No state secrets need be exposed. After litigation at both the district court and circuit court level, no state secrets have been exposed.
In fact, Federal District Court Judge Vaughn Walker, a Republican appointee, has already ruled that the issue can go to trial without putting state secrets in jeopardy.
In closing, Senator Dodd sums up why the Senate, and the entire Congress, should reconsider placating the Bush administration in their attempted cover-up of their crimes:
That question is coming for every single one of us in this body. Every single one of us will be judged by a jury from whom there’s no hiding: our sons, our daughters, our grandchildren. Someday soon, they’ll read in their textbooks the story of a great nation, one that threw down tyrants and oppressors for two centuries; one that rid the world of Nazism and Soviet communism; one that proved that great strength can serve great virtue, that right can truly make might.
And then they will read how, in the early years of the 21st century, that nation lost its way.
We do not have the power to strike that chapter. No, Mr. President—we can’t go back.
We can’t un-destroy the CIA’s interrogation tapes. We can’t un-pass the Military Commissions Act. We can’t un-speak Alberto Gonzales’s disgraceful testimony. We can’t un-torture innocent people. And perhaps, sadly, shamefully, we cannot stop retroactive immunity. We can’t un-do anything that has been done in the last six years for the cause of lawlessness and fear.
We cannot blot out that chapter. But we can begin the next one, even today. Let its first words read: “Finally, in June 2008, the Senate said: ‘Enough.’”
foreign affairs & politics posted by: dan @ 25 Jun 2008 13:02 | Comments (0)
