[Originally posted at Corrente. Welcome, Sidehow readers.]
Will the only Constitutional scholar in the race take a stand on retroactive immunity for the telcos?
I'm guessing no. Though nothing would please me more than for Obama to show leadership by denying retroactive immunity to the telcos helping Bush with his illegal and unconstitutional warrantless surveillance program and violating FISA, I think he'll play for safety rather than play to win.*
So, I'd like to give him and his a gentle nudge in the direction of standing up and doing the right thing. First, I'll give a high level overview** of the situation with the Fourth Amendment, the Constitution as I see it, FISA, and the role of the telcos. Then I'll summarize the very real political benefits that could accrue to Obama from using the Senate floor as a bully pulpit to prevent retroactive immunity for the telcos under cover of "reforming" FISA.
For those who came in late, here's the Fourth Amendment:
The right of the people to be secure in their persons, houses, , and effects, against unreasonable searches and seizures, shall not be violated, and , but upon probable cause, by Oath or affirmation, and the place to be searched, and the persons or things to be seized.
Now, assuming you're not a lawyer or from inside the Beltway, what would you say the plain meaning of this text would be, in the twenty-first century? Just using your common sense and a concept of basic fairness about how the United States should work, as a country, I think you'd come up with something like this:
Papers. First, you'd say that "papers and effects" would include your email and whatever you do on the web. After all, the Framers didn't have email, back in the 1790s, and the only way they had to convey information was on paper, so they wrote "paper." But it's the information that matters, not the medium that conveys it. (After all, if the medium was important, the government would be able to search cardboard boxes or stone tablets in your house without a warrant, and that's absurd.) So, email (and IM, and VOIP, and FaceBook) all are twenty-first Century paper. And I live on the Internet, and a browser part of my twenty-first century house, just like a book or a deak was part of my house, back in the 1790s with the Constitution was written.
No warrants shall issue. If the government wants to search my papers in my house, they need to go before a judge and get permission. Kings don't need to do this, but Presidents do.
Supported. And to search my papers in my house, the government has to have some evidence. They can't just waltz in because they think it's a good idea, or because it's Tuesday, or because everybody whose name begins with L goes into the big database on the 31st of February.
Particularly describing. Finally, the evidence can't be vague. The government can't say, "Joe Schmo thinks Lambert is a terrorist, so we need to search his house." They need to add language like "... search his house for the Zucchini of Chastisement," and then search for the zucchini.
The Framers and the American people in the 1790s, let us remember, had just experienced what it was like to live under an arbitrary despot, a tyrant, who did not respect the rule of law. They were not writing abstractly. They wrote to prevent the very real abuses they themselves had suffered, and to protect future generations from similar abuse. In fact, the Bill of Rights, from which the Fourth Amendment comes, was not in the Constitution as originally drafted, and was added only after pressure from the people forced them to do so, as the price for ratification.
Fast forward from the 1790s to the 1970s. In the aftermath of the meltdown of the Nixon administration, many, many abuses of the very kind the Framers warned us against were brought to light by the Church Commission; stuff the NSA and the CIA and the FBI did that was just as bad as what the Republicans have done in our own day. And in response to these abuses, the Congress of that day crafted, in a truly bipartisan way, FISA (the Foreign Intelligence Surveillance Act). FISA, among other things, established a system of secret courts to issue warrants, so that the Fourth Amendment could be observed without compromising intelligence sources and methods. FISA turned down requests for warrants in only a handful of cases. FISA had emergency provisions so surveillance could begin before the warrant was sought. And FISA was continually modified in response to technological changes.
Fast forward from the 1970s to the year 2000, and we come to the Bush administration's warrantless surveillance program, which violated FISA (and by "violate," I don't mean "break." More like "rape and pillage"). Here's a quick rundown:
- The warrantless surveillance program began before 9/11. In fact, Bush started pushing for it right after he took office. Therefore, the Bush administration's name for it, the "Terrorist Surveillance Program," is, like "Healthy Forests" and so much other administration language, a lie.
- According to whistleblowers, the warrantless surveillance is program is massive. For example, in AT&Ts San Francisco network hub, there's a fibre optic switch that routes all Internet traffic going through that hub off to the NSA.
- The warrantless surveillance program used all that Internet data for a gigantic datamining operation, so huge that NSA headquarters in Fort Meade, Maryland was actually running out of electrical power.
- Bush bypassed FISA and the Congress when establishing the program. Instead, Bush worked directly through the telcos over whose cables, and through whose switches, all Internet traffic runs. There were no courts. There were no warrants. There was no legal justification. There was only an arbitrary decision made in secret.
- The telcos, with one exception, did what Bush asked, and allowed Bush use their networks to read our papers. Of course, they bill the government for this, and, if the government pays its bills, the surveillance business is a very profitable one for them.
- The telco that refused, Qwest, had government contracts taken away, and their CEO was prosecuted.
- Under FISA, the telcos have an affirmative and independent duty to obey the law. They cannot claim to be simply "following orders" and do what they are asked to do, because they are asked to do it.
- A Federal judge concluded, in ACLU vs. NSA, that over 30 felonies were committed in the course of Bush's warrantless surveillance program. That's because FISA is to be the "exclusive means" through which such surveillance is authorized, and violating FISA is a felony. So, each time Bush putatively "reauthorized" the program, he's guilty of a felony, and those who assisted him in his crime--that is, not only other administration officials, but the telcos--are guilty of felonies too.
- When the Democrats took control of the House and Senate in 2006, Bush "saw the light" and "decided" to obey the law, and go before FISA to seek warrants once again. How we went about doing that raises a separate set of issues, but it's clear that the program, before that, was operating outside any legal framework whatever. So, the essential issue is this:
Should the telcos who committed felonies by assisting Bush's warrantless surveillance program pay the legal price?
Or should they be granted retroactive immunity for their lawbreaking? (Note that there are many cases against the telcos in the courts today. So, by giving retroactive immunity, Congress would not only be allowing lawbreakers to go free, they would be intervening in ongoing cases before the courts, and taking away the right of citizens to a judgement, which is virtually unprecedented.)
I think the telcos should pay the legal price. If we want to live under a Constitutional government, then we need to support the Constitution when people--even fictive legal persons like huge corporations--violate it. Take a look again at the Fourth Amendment, and look what they did:
Papers. My (twenty-first century, digital) papers were seized, in my (twenty-first century, digital) house.
Supported. There was no supporting evidence given at all. Remember that Bush put this program in motion before 9/11, so terrorism had nothing to do with the program.
No warrants shall issue. There was no warrant; Bush bypassed FISA entirely.
Particularly describing. Nothing was particularly described; it was a data mining operation! They sucked down everything they could, and then began rummaging to see if there was anything useful.
So, Bush's warrantless surveillance program is a gross violation of the Constitution, besides being a felonious violation of Federal law.
And when the telcos assisted Bush in committing 30 felonies, they too committed felonies. Do you know what happens to us when we commit felonies? We get prosecuted, and if we're convicted, we got to jail. Is there any possibility that we'll get retroactive immunity? No.
Does Congress, by granting retroactive immunity to giant corporations who break the law, really want to send the message that there's one law for the rich and powerful, and another law for the ordinary citizen?
Apparently, they do. Spineless Harry Reid and Jello Jay Rockefeller have cooked up legislation that does exactly that.
Ask yourself: If big corporations get retroactive immunity for breaking this law, what law are they going to break and get immunity for next? Banks on lending practices? Polluters on clean air and water? Manufacturers of medical equipment? Makers of prescription drugs? Is Congress to be transformed from the branch that legislates to the branch that legalizes? After the fact?
Last time Reid and Rockefeller tried their games, Chris Dodd stepped in and stopped them with a filibuster. Obama supported him with a statement, but didn't take the risk of actually speaking on the Senate floor (he was, after all campaigning in Iowa).
Soon, the Senate will take up FISA and the issue of retroactive immunity for the telcos again. Where will Obama stand? With gutless, accomodationist sellouts like Reid and Rockefeller? Or with Senators like Dodd, Feingold, and Wyden who stood up and did the right thing? Which bill will Obama support? The bill Reid supports, which the telcos might as well have written for Rockefeller, or the bill Leahy supports, which doesn't have retroactive immunity? And will he support the Constitution from far away, or will he take the body and support it from the Senate floor?
I believe that Obama should stand with Dodd and Fiengold and filibuster FISA to deny retroactive immunity to the telcos. I believe it's not only the right thing to do, but the smart thing to do. Here's why:
- Obama can show his unique oratorical skills in the bully pulpit of the Senate floor, on an issue of real consequence.
- Obama can weave his unity theme into a defense of the Constitution. Surely there, in the Constitution itself, is where our most fundamental true union as a country is to be found? (And not in matters like religion, gender, or race.)
- Obama can use his unique skills as a Constitutional scholar and treat the filibuster as a teachable moment for the American people. Surely, when the Constitution is under daily assault from the Bush administration, and retroactive immunity for the telcos is an insult to the body politic, the "fierce urgency of now" demands that the Constitution be defended "now"?
- Obama can show that he really does have fundamental principles that transcend compromise, and bargaining, and brokering. Surely the rule of law, and the sanctity of the Fourth Amendment, is one such transcending issue?
- Obama, by standing up to the telcos, can take the corporate talking point away from Edwards.
- Obama, by standing up to the telcos, takes the "experience" issue away from Hillary.
- Finally, I'm dying to post the YouTubes, because I think they'd be spectacular.
In short, I think a FISA filibuster offers Obama an game-channging opportunity in the 2008 election: An opportunity that only he, by virtue of his oratorical prowess and Constitutional scholarship, can seize.
I hope he seizes the chance.
Sadly, I don't believe he will.
* OFB PROPHLACTIC Yes, I am paid by the Hillary campaign. Yes, I hope to get a job in Hillary's administration. Yes, I am a shill. Yes, I am a hack. Yes, I am a liar. Yes, I am a racist. Yes, I am a purist. Yes, I am a troll. Yes, I am ignorant. Yes, I hate Obama. Yes, I ignore all facts that don't square with my [lying|racist|purist|shilling|hackish|trollish] preconceptions of Obama. Yes, my reading comprehension is poor. Yes, I have a hidden agenda: I hope that the Democrats lose, and to that end I support [not Obama]. Yes, I could be older than you. Yes, I think all young people are stupid. Did I mention I'm a shill and a hack? Good. Anything else?
Those of you who have gotten this far, perhaps you can make substantive responses? I'll vote for your guy in the general, but he hasn't given me a reason to do that in the primaries. I'm trying to help him.
* NOTE This ground has been very well worked over by now, and so I'm not offering a lot of linky goodness. See Glenn
and our own work at Corrente