Fri Jun 20th, 2008 at 06:56:58 PM EST
The US congress has been updating its surveillance policies again and has finally succeeded in removing the last shred of civil liberties based upon prior law. There are a few groups which understand the importance of ensuring the privacy of the average person and have been objecting to the wholesale intrusion on this privacy, but I think this is not the most important violation.
For example, there is some concern about getting a court-issued warrant before surveillance can take place. This is based upon the provision in the fourth amendment:
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.
However, in practice this is a sham requirement. The FISA court set up to "protect" the rights of those being spied upon has approved all but a handful of such requests, so whether a warrant is "required" these days makes no difference in practice.
Similarly, the liberal blogosphere has been upset about the willingness of several telecom companies to provide wiretap facilities to the government without proper legal procedures. They feel that this "transgression" should be punishable, by taking the firms to court. This is also irrelevant. In the real world it is extremely remote that these firms would be sanctioned when they can claim that they were following directives from the president in a time of heightened national security. In fact with a bit of paperwork the president could have exempted them from possible liability from the start. It was only his arrogance that prevented him from providing this cover.
The real issue is that one of the four fundamental axioms of democratic governance has been broken. This time in a very public and inexcusable way. I have written about this before, in an essay based upon the work of legal philosopher Franz Neumann.
Here is one version of his basic principles:
- All men are equal before the law.
- Laws must be general, not specific (this rules out bills of attainder).
- Retroactive laws are illegitimate.
- Enforcement must be separate from the decision-making agencies.
[My essay discussing these in detail: Saving Democracy
I want to focus on #3. The law voted on today grants retroactive immunity to the telecom companies for providing data to the government without a proper warrant.
A democratic society cannot exist if retroactive laws are permitted. Let's make up a simple example. Tomorrow there is a law passed which says blogging about legislation in against the law and anyone who has done it since the beginning of the year is now subject to arrest. Or perhaps, drinking coffee will be made illegal retroactively. The point is that there is no longer any basis for rational behavior. You can be punished for things in the past arbitrarily. That's a police state, not a democracy.
However, congress was willing to destroy one of the pillars of democracy just so a few wealthy firms could avoid some embarrassing court appearances. There was no chance that these firms would ever suffer any punishment from their actions in any case. The courts are just too cowed by claims of "national security" these days.
That's how freedom disappears, one step at a time, all done "legally". For those in Europe who may be feeling a bit smug, I suggest looking at some of the recent policies that have been enacted there as well. Mass hysteria and totalitarian tendencies are not just an American disease.