The Fourth Amendment Is Impractical

So say the best legal opinions money and power can buy, as Scott Horton tells us in his piece about yesterday’s Senate approval of retroactive immunity for telecoms who helped and are helping the Bush administration spy on Americans’ emails and phone calls.

If things proceed on the course now set by the Bush Administration and its shortsighted collaborators, and the national surveillance state is achieved in short order, then future generations looking back and tracing the destruction of the grand design of our Constitution may settle on yesterday, February 12, 2008, as the date of the decisive breach. It hardly got a mention in the media, obsessed as it was with reports on the primary elections, the use of drugs in sporting events, and that unfailing topic, the weather. Yesterday the Senate voted down the resolution offered by Senator Dodd to block retroactive immunity for the telecoms and it voted for a measure which guts the Constitution’s ban on warrantless searches by extending blanket authority to the Executive to snoop on the nation’s citizens in a wide variety of circumstances, subject to no independent checks. On the key vote, the Republicans in the Senate continued to function in lock-step, as they have on almost all significant issues for the last seven years, while the Democrats fragmented. Their vote summed up everything that’s wrong with Washington politics today. Fear and hard campaign cash rule the roost, and the Constitution is regarded as a meaningless scrap of parchment, indeed, a nuisance.

All that the other side has is fear: fear of Islamists, fear of more terrorist attacks, fear of being called unpatriotic, or anti-American, or a terrorist sympathizer– fear, when you come right down to it, of becoming a target of that illegal surveillance for the very act of opposing it, or supporting or being associated with others who oppose it.

For example: this Wall Street Journal editorial criticizing Barack Obama for voting against retroactive immunity:

It says something about his national security world view, or his callowness, that Mr. Obama would vote to punish private companies that even the bipartisan Senate Intelligence Committee said had “acted in good faith.” Had Senator Obama prevailed, a President Obama might well have been told “no way” when he asked private Americans to help his Administration fight terrorists. Mr. Obama also voted against the overall bill, putting him in MoveOn.org territory.

The defeat of these antiwar amendments means the legislation now moves to the House in a strong position. Speaker Nancy Pelosi is in the Dodd-Obama camp, but 21 Blue Dog Democrats have sent her a letter saying they are happy with the Senate bill. She may try to pass the restrictions that failed in the Senate, and Republicans should tell her to make their day. This is a fight Senator McCain should want to have right up through Election Day, with Democrats having to explain why they want to hamstring the best weapon — real-time surveillance — we have against al Qaeda.

Or this, from a post by Brian Faughnan at The Weekly Standard:

Here’s the FISA state of play: the Senate yesterday soundly rejected an amendment by Chris Dodd to deny telecom companies legal protections for their good-faith cooperation with terrorist surveillance. Dodd and other liberals apparently want future requests to the telecom companies to sound like this: “Hi, I’m with the CIA and we want you to listen in on Osama bin Laden’s phone calls. It’s an urgent matter of national security, and you better have plenty to spend on lawyers because you’ll get sued out the wazoo.”

What a mountain of manure. This is not about “listening in on Osama bin Laden” — this is about listening in on phone calls placed by a Pulitzer Prize-winning journalist researching a book on 9/11 — and then accusing the journalist’s daughter — who wasn’t even home at the time — of placing the calls. And when stuff like that happens, the victims have no recourse whatsoever — because Republicans and Democrats in Congress totally buy into the Bush administration’s totalitarian argument for allowing private companies to violate the law with impunity:

The issue in focus was a retroactive grant of immunity to telecommunications giants which violated the rights of millions of Americans by facilitating warrantless surveillance by the Bush Administration. With the exception of Qwest, they were knowingly complicit in criminal acts. And in a touch worthy of a totalitarian state, Qwest quickly found its CEO under criminal investigation and prosecuted. In fact the White House’s own arguments smack of the mentality of totalitarianism. Here’s the leading argument that the White House offers up in favor of the legislation:

“Companies should not be held responsible for verifying the government’s determination that requested assistance was necessary and lawful — and such an impossible requirement would hurt our ability to keep the Nation safe.”

But as Dan Froomkin notes at the Washington Post, “Isn’t that the very definition of a police state: that companies should do whatever the government asks, even if they know it’s illegal?” Indeed it is.

I certainly find it interesting, to say the least, that our brave troops fighting in Iraq and Afghanistan to preserve our freedoms here at home were not able to stop Congress from trashing the Constitution, and that the same folks who tell us that Americans’ freedom hinges on the Marines being able to recruit in Berkeley or play urban guerrilla war games in downtown Toledo, can write post after post about legally indemnifying companies so they can break the law at the government’s request, without mentioning the word “freedom” even once.

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