True Colors

So President Bush made headlines a short time ago by threatening to veto any legislation that would not grant retroactive immunity to telecommunications companies that assisted the Government in conducting wiretaps against American people without warrants. The administration asserted that the law which had been in effect had to be renewed "as is" to allow America to be secure, and that not extending the law would weaken America.

What the law did was provide an end-around of FISA and the Fourth Amendment. For the uninitiated, the Fourth Amendment requires that "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized (emphasis mine)." This requirement has extended to telephone conversations based upon (inter alia) Katz v. U.S., 389 U.S. 347 (1967) and Berger v. New York, 388 U.S. 41 (1967).

In the early 1970s, The Court issued its ruling in what is known as the Keith case. In this case, the defendants were a domestic dissident group. This means that their activities did not touch upon the foreign affairs powers of the President. They were nonetheless subjected to electronic surveillance. The Government wanted to use this surveillance in prosecuting the case, claiming that Probable Cause was not a one size fits all requirement, despite the plain language of the Fourth Amendment, and the President is vested with inherent powers to disregard the requirement (This was Nixon's argument, and is not unlike much of what President Bush has argued). It argued that the situation was "complex," and therefore a warrant would be too burdensome. The Court, however, said that they dealt with Complex issues all the time, and therefore this would not suffice as an excuse to violate the Fourth Amendment. However, the Court did concede that Probable Cause may not be the proper standard in all situations (which sounds a lot like Judicial Activism, to me), and that Congress should consider different standards (which sounds an awful lot like an advisory opinion to me, which is another Court no-no). Congress did, and gave us FISA.

Real quickly, FISA is the Foreign Intelligence Surveillance Act, and it allows the collection of information before securing a warrant, provided a warrant is secured within 3 days after surveillance begins. It also puts the standard of review for the Court at little more than a rubber stamp. The Court may not rule on sufficiency of the request, rather, it can only rule on whether the request was filled out properly. In other words, the courts essentially cannot refuse a FISA warrant if the agent requesting the Warrant crossed the "t"s and dotted the "i"s.

Somehow, this was insufficient for the President, who saw fit under his authority as President to order surveillance of Americans without securing a warrant, and now wants to protect those who assisted him in violating the civil rights of untold numbers of Americans. But, he's changed his tune. Now, we're no longer as worried about weakening America (because really, we're no weaker), no, now we need to stop the bloodsucking lawyers: "When Congress reconvenes on Monday, members of the House have a choice to make: They can empower the trial bar, or they can empower the intelligence community.... They can help class-action trial lawyers sue for billions of dollars, or they can help our intelligence officials protect millions of lives."

This is too bold. The President is essentially saying "don't make people answer for their transgressions - grant them ex-post facto protections," (while the Constitution forbids the passage of ex-post facto laws, the Court has ruled on more than one occasion that this only applies to making illegal what was once legal, and not vice-versa). He conveniently ignores that any damages paid would be to compensate for injury caused by real or potential harm to individuals' civil liberties by the telecommunications firms' assistance in the government's violation of the 4th Amendment and ignores the all-too-real situation that the law he seeks to have re-enacted is unnecessary. He does so in a most disingenuous fashion, and I find that more offensive than his original argument that Congress was making America weaker.