Tap that

Congress is ready to legalize the past seven years of illegal wiretapping over the protests of privacy advocates.

Every so often, it’s nice to pull out the old pocket-size U.S. Constitution, just for a bit of a refresher. In particular, you might want to take note of the 4th Amendment, because it might not be there much longer. Fans of probable cause look to be in for a tough week, because Congress is getting ready to finally legalize the entirety of the White House’s warrantless wiretapping program. If you value your privacy, now is a good time to invest in some alternative communication techniques – like smoke signals, or perhaps a new breed of carrier pigeon. Once the House of Representatives passes the comically-named Protect America Act, as they plan to do within the next few days, the precedent will be set: any surveillance is fair game.

It has been more than two years since the New York Times broke the story about the government’s illegal wiretapping program. The Times revealed that the government had been spying without warrants on the phone calls and e-mails of “hundreds, perhaps thousands” of people who were on U.S. soil at the time, in blatant violation of the Foreign Intelligence Surveillance Act. FISA requires the government to take its domestic wiretap requests to a secret court for approval. That secret court, from 2001 to 2004, approved over 99 percent of all such requests. Of course, that wasn’t good enough for the Bush administration, so they started spying on people without even bothering to notify the rubber-stamp secret court.

The fight in Congress now comes down to what we should do about the legal status of those phone companies who participated in that illegal wiretapping. Various revisions to FISA over the last few years have stripped away nearly all of the remaining civil liberty provisions (for example, the Attorney General himself can now approve wiretap requests, without even having to bother with the secret court); that battle has sadly been lost. Having already signed away our future civil liberties, Congress is now ready to do the same for our past.

Many of the major telecom companies, like AT&T and Verizon, participated in the illegal wiretapping program following Sept. 11. President George W. Bush and his allies in Congress now argue that those phone companies should be legally protected against any lawsuits from disgruntled citizens. At the same time, of course, the President continues to maintain that there was nothing illegal about his wiretapping program. Apparently the phone companies need to be protected against their own legal actions.

Like they always have, Bush and his allies found Congressional Democrats ready to give the White House everything. In this case Vice President Dick Cheney allied with John Rockefeller, the Democratic chair of the Senate Intelligence Committee. Together, they pushed through the Senate the bill to ensure immunity for the telecom companies. A few senators (notably, former presidential candidate and all-around progressive superstar Chris Dodd) tried to block the legislation, and even succeeded in delaying its passage last December. In the end, too much power and influence was aligned behind the retroactive immunity, and the legislation passed the Senate. Now that the House is on board, the game is over.

Currently, there are about 40 in-progress lawsuits from customers complaining about the illegal wiretapping program. Those lawsuits were already struggling to gain footing in the courts, because various federal courts had previously ruled that the plaintiffs lacked standing – because they could not prove they had been wiretapped. Of course, the government is in no hurry to release the names of those who were illegally spied upon, so one is left to wonder how anyone could ever prove their legal standing. But now that the House of Representatives is preparing to grant the phone companies blanket immunity, even these long-shot lawsuits will be dead in the water.

These lawsuits are important for a few reasons: obviously, citizens should have legal recourse when the government breaks the law. More importantly, these lawsuits are the only method by which we can learn specifics about the illegal operations of the last few years.

Bush has framed his arguments in favor of the retroactive immunity in a few ways. Sometimes, he says we should be rewarding the phone companies for doing their patriotic duty. But we all learned how patriotic those phone companies are when they started cutting off FBI wiretaps – because the government’s payments were late. Other times, Bush will claim that the phone companies will not want to cooperate with the government if they fear litigation. But according to the ACLU, “FISA orders and Protect America Act (PAA) directives are compulsory. Telecoms must comply with lawful orders. Telecoms only had discretion when they decided to cooperate with illegal government requests.” The real reason Bush wants this immunity is simple: he doesn’t want details of his illegal spying program to be released.

Neither do Congressional Democrats. Over the past 7 years, the progressive wing of the Democratic Party has reacted to each congressional capitulation in the same basic way: “oh, those spineless Democrats are folding under pressure from the White House.” In some cases, that may have been true. Here, on the other hand, it seems quite clear that many Democrats in both the House and Senate simply think that retroactive immunity is a good idea.

The president’s approval ratings are abysmal, and those of Congress are just as bad. Presumably, the public despises Congress so much because those on Capitol Hill have done nothing to fight the White House. There has never been a more politically safe time to oppose this president. If Congress actually thought dragging the rule of law through the mud was a bad idea, they would be quite capable of stopping it. Instead, they are lining up with the White House. It’s not a lack of courage – it’s a lack of basic respect for all of us.

Sadly, most of us don’t seem to care. The House will vote on the bill, the president will sign it, and we’ll all go on with our lives. Just try not to say anything too embarrassing over the phone – you’ll never know who is listening.

John Sharkey welcomes comments at [email protected]