Fearful Democrats cave on constitutional protections
WASHINGTON (MarketWatch) -- If Al Qaeda is fighting us because they hate our freedoms, as President Bush often says, then they're winning the war.
Pretty soon, we won't have any more freedoms for them to hate.
Scratch the Fourth Amendment off the list of freedoms that we thought we had.
Read the Fourth Amendment.
Pressured by a huge lobbying effort by Big Telecom and by fears of being painted as weak on terrorism, the Democratic-controlled Senate has rolled over on your right to privacy, abandoning legislation that would enforce the constitutional requirements of probable cause and due process of law before the phone companies can help the government spy on you by turning over your phone records, emails and other sensitive information.
Instead, the bill now moving toward passage would give the phone companies broad legal immunity when they collect and turn over any information on you that the government says it needs. No warrant needed. No questions asked.
On Tuesday, the Senate, with the backing of 18 Democrats and every Republican, defeated attempts by Sens. Chris Dodd and Russ Feingold to hold the telecom companies accountable for their past illegal conduct.
Sen. Barack Obama voted for your freedom. Sen. John McCain voted against you. Sen. Hillary Clinton didn't vote but is opposed to immunity, a spokesman said.
Immunity for telecoms
The only hope for your freedom to be secure against "unreasonable searches" now rests in the hands of the House, which passed a wiretapping bill that does not give the telecom companies amnesty.
Bush has promised to veto the wiretapping bill if it does not include the telecom amnesty provision, even though he has said the bill is essential to keep America safe.
You might think the veto threat means the president values the telecom companies' profits more than he values your life, but really he values his own skin. Giving immunity for the telecoms means that Bush and his administration will never be held legally accountable for their crimes because the truth will never come out.
The Bush administration and the Republican leadership have lied consistently about the secret domestic spy program that bypasses the special court that was set up in the 1970s in response to the nation's outrage about the government spying on American citizens without a judicial order. They say it's all about listening in when Al Qaeda calls, but the secret program appears to go far beyond that admirable goal.
During the debate on the wiretapping bill, the Republicans said the government wasn't able to save the lives of some American contractors in Iraq because the legal niceties took too long. But the lives were actually lost because the intelligence agencies and the Justice Department bungled the case, not because Congress had tied their hands.
Domestic spy program still murky
It's perfectly legal (under current U.S. law) for the U.S. government to spy on terrorists in Iraq. What the Constitution forbids is unreasonable searches of American citizens inside the United States, which apparently have gone on unfettered for the past seven years.
The U.S. domestic spy program expanded by the Bush administration remains murky. What few details are known are troubling, because they suggest that the government has the ability and the will to collect massive amounts of information about ordinary citizens in real time, with the enthusiastic support of the major telecommunications companies seeking lucrative government contracts and without any check by the courts.
While the administration says the 9/11 attacks made such spying necessary, the White House began expanding its domestic spying program well before September 2001, according to court documents filed by Joseph Nacchio, the former head of Qwest, who claims his refusal to violate the law and turn over private information to the government led to the denial of a big government contract for his company and to his subsequent conviction on insider trading.
The phone companies, including AT&T that did go along with the spying are being sued by privacy advocates. Current law specifically prohibits the phone companies from turning over private information to the government without due process. One judge has already ruled against the phone companies.
In their defense, the phone companies say they were just being patriotic and that anything they did was requested by the Justice Department. But just in case their legal argument fails, the companies have spent millions lobbying to get the law changed retroactively.
The bill now being rushed through a complacent Senate would kill those lawsuits by giving the phone companies blanket immunity for past and future transgressions. No questions asked.
Because the Congress has refused to investigate the secret spying program (even in a secret session), the private lawsuits are the only way the truth about the spying program will ever be known. Giving amnesty to the telecoms effectively gives amnesty to Bush and other officials who ordered the spying.
If spying on Americans is justified, the administration should be forced by Congress or the courts to prove it. Neither the telecoms nor the administration has proven that.
Those who support ripping up the Constitution often say that if you don't have anything to hide, warrantless spying shouldn't bother you.
HOW DOES THAT MAKE YOU FEEL IF YOUR GRANDFATHER DIED AT NORMANDY FIGHTING FOR THE PENUMBRAL RIGHT TO PRIVACY UNDER THE BILL OF RIGHTS? OR HOW DOES THAT MAKE YOU FEEL IF YOU HAVE AN ORIGINAL PATENT THAT YOU DON'T WANT A COMPETITOR TO SEE?
The same standard should apply to the phone companies. If they don't have anything to hide, then why do they need immunity? Why shouldn't Congress, the courts and the people know the full extent of the spying and its legal justification?
Chalk up another victory for the terrorists, who hate our freedom. So too, apparently, does the U.S. government.
End of Story
Rex Nutting is Washington bureau chief of MarketWatch.
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