Five Myths About the New Wiretapping Law  

Posted by Big Gav in , ,

Slate has a look at the latest US wiretapping law that Bush and his successors will need to ignore before violating it - Five Myths About the New Wiretapping Law - Why it's a lot worse than you think..

Sometime today, the Senate is likely to approve the most comprehensive overhaul of American surveillance law since the Watergate era. Unless you're a government lawyer, a legal scholar, a masochist, or an insomniac, chances are you haven't read the 114-page bill. Don't beat yourself up: Neither have most of the 293 House members who voted for it last week. Ditto the mainstream press, who seem to have relied chiefly on summaries provided by the same lawmakers who hadn't read it.

To be fair, wiretapping is so classified, and the language of the bill so opaque, that no one without a "top secret" clearance can say with any authority just how much surveillance the proposal will authorize the government to do. (The best assessment yet comes from former Justice Department official David Kris, who deems the legislation "so intricate" that it risks confusing even "the government officials who must apply it.")

Out of the echo chamber of ignorance and self-serving political cant, a number of myths have begun to emerge. We may never know for sure everything that this new legislation entails. ...

The Democrats' most pathetic bit of self-deluded posturing involves the inclusion of a clause suggesting that the new law represents the "exclusive means" by which "electronic surveillance and interception of certain communications may be conducted." According to House Speaker Nancy Pelosi, D-Calif., this means "the law is the exclusive authority and not the whim of the president." But, then, FISA always said that it was the "exclusive means." And in 2001, pretty much on a whim, the president set it aside. So for those of you keeping score back home, the Democratic leadership is patting itself on the back for including in the new law a provision that was already in the old law—and which the Bush White House chose to ignore.

Here, then, is the bitter joke of the new legislation: From 2001 to 2007, the NSA engaged in a secret program that was a straightforward violation of America's wiretapping laws. Since the program was revealed, the administration has succeeded in preventing the judiciary from making a definitive declaration that the wiretapping was a crime. Suits against the government get dismissed on state-secrets grounds, because while the program may have been illegal, it was also so highly classified that its legality can never be litigated in open court. And now suits against the telecoms will by dismissed en masse as well. Meanwhile, the new law moves the goal posts, taking illegal things the administration was doing and making them legal.

Whatever Hoyer and Pelosi—and even Obama—say, this amounts to a retroactive blessing of the illegal program, and historically it means that the country will probably be deprived of any rigorous assessment of what precisely the administration did between 2001 and 2007. No judge will have an opportunity to call the president's willful violation of a federal statute a crime, and no landmark ruling by the courts can serve as a warning for future generations about government excesses in dangerous times. What's more, because the proposal so completely plays into the Bush conception of executive power, it renders meaningless any of its own provisions. After all, if the main lesson of the wiretapping scandal is that we need more surveillance power for the government, what is to stop President Bush—or President Obama or President McCain—from one day choosing to set this new law aside, too? "How will we be judged?" Sen. Chris Dodd, D-Conn., asked in a stirring speech deploring the legislation yesterday. "The technical argument obscures the defining question: the rule of law, or the rule of men?"

A little more big brother news comes from Orwell's homeland, via The Guardian - "Is Britain on the slippery slope to dictatorship?".
There was something extremely familiar to me about this week's events. The way they closed down the whole of Whitehall for George Bush's visit reminded me of how, in Havana, they close the main highway every time Fidel Castro crosses from one side of town to the other.

There was also something unpleasant about the way many in the BBC turned the discussion away from the loss of civil liberties in Britain and instead began to present David Davis as an egotistical oddball, pulling a clever stunt simply to spite the leader of his party. Soviet TV attacked dissidents in the same way. ...

So this is the thing. If I, as a citizen, and people like me, don't agree with the way we are being governed, where do we go to withdraw our consent to be governed? I don't want to simply switch to the Tories or Liberal Democrats, I want a new contract with my state as a citizen, one that respects my civil liberties.

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