Topic: Law and Civil Liberties

Telecom Amnesty

Over at Slate, I wonder what ever happened to the Republican devotion to the rule of law:

Press reports suggest that the Bush administration has created at least two warrantless surveillance programs with the cooperation of major telecom companies. The first, reported by the New York Times in 2005, involved the warrantless interception of several hundred Americans’ international phone calls and e-mails. Under the second, first reported by USA Today in 2006, Verizon and AT&T (then called SBC) reportedly provided the government with access to the domestic calling records of its customers. Qwest CEO Joseph P. Nacchio declined to participate in the latter program, believing that doing so would be against the law. Nacchio now alleges that the NSA retaliated for his refusal by canceling an unrelated, lucrative government contract. (He faces unrelated charges of insider trading.) Last summer, the Heritage Foundation’s Matthew Spalding insisted that giving amnesty to illegal immigrants would be “deeply unfair to the millions who obey the law and abide by the rules.” By the same token, letting AT&T and Verizon off the hook would not only be unfair to the customers whose privacy they violated, it would also be unfair to Qwest, which was put at a competitive disadvantage for obeying the law.

Last year, when the Senate was debating immigration reform, Sen. Kay Bailey Hutchinson was arguing that “America is based on the rule of law, and that law must be enforced.” Many other Republican Senators expressed similar sentiments, opposing any leniency for illegal immigrants. But yesterday she voted with every one of her Republican colleagues to forgive telecom companies for their illegal activities. If migrant workers are obligated to obey our laws, surely our largest corporations have the same obligation.

The Fear Factory

Via Hit and Run, the article from the February 7 Rolling Stone that Ben Friedman blogged about recently is now online. “The Fear Factory” discusses multiple cases where the FBI’s Joint Terrorism Task Forces have brought cases against defendants who “posed little if any demonstrable threat to anyone or anything.” Crucially, the story illustrates how information about the JTTFs’ activities are shrouded behind claims of secrecy.

This is no way to do law enforcement - or to secure a free country.

Judicial Oversight vs. Unchecked Presidential Power

The Wall Street Journal has an editorial today that makes some blatantly misleading assertions about the FISA debate:

By far the worst threat is an amendment from Senator Chris Dodd (D., Conn.) to deny legal immunity to telephone companies that cooperated with the government on these wiretaps after 9/11. The companies face multiple lawsuits, so a denial of even retrospective immunity would certainly lead to less such cooperation in the future.

This is precisely the goal of the left, which has failed to get Congress to ban such wiretaps directly but wants to use lawsuits to do so via the backdoor. We’re told that Hillary Clinton and Barack Obama are co-sponsoring the Dodd amendment, no doubt for political reasons as they compete for left-wing votes in their nomination fight. But they had better hope the effort fails, because as President they’d surely want the same telecom cooperation.

In fact, “the left” got Congress to “ban such wiretaps directly” thirty years ago, when Congress passed FISA in the first place. Glenn Greenwald cites chapter and verse here, but the Journal’s position doesn’t even make sense on its own terms. If warrantless domestic eavesdropping isn’t illegal, then why is the White House pushing so hard for immunity? If the White House or the telecom companies believe that they haven’t violated FISA, or that FISA is unconstitutional, they have every opportunity to make that argument to the courts. If the Ninth Circuit doesn’t give them a fair hearing, the Supreme Court—which now includes two Bush appointees and seven Republican appointees—certainly will. AT&T and Verizon haven’t advanced the argument that warrantless domestic wiretapping legal under FISA because they know perfectly well that it’s not.

The idea that Pres. Obama or Pres. Clinton will be unable to get the “cooperation” of the telecom companies in the future is equally misguided. FISA requires telecom companies to cooperate with the government after the government gets a warrant. What’s at issue in this debate isn’t whether companies should “cooperate”; everyone agrees that they should. The issue is whether the “cooperation” should occur with or without judicial supervision. Some of us believe that judicial supervision of domestic eavesdropping is an important safeguard for Americans’ privacy. Others, apparently including the Wall Street Journal’s editorial board, want to return us to the pre-FISA days when the NSA routinely rifled through innocent Americans’ international communications. Strangely enough, they never seem to phrase it that way.

What Newt Gingrich Can Teach Nancy Pelosi about Protecting Civil Liberties

I’ve got a new article in Reason taking the Democrats to task for their tepid defense of civil liberties. I suggest they take their cue from that noted civil libertarian Newt Gingrich, who in 1996 resisted President Clinton’s demands for expanded wiretapping powers:

Bush’s predecessor was also an ardent supporter of increased wiretapping authority. For example, on July 29, 1996, Bill Clinton unveiled a proposal to expand government surveillance by permitting the use of “roving wiretaps.” The nation was still reeling from terrorist attacks on the Atlanta Olympics and American barracks in Saudi Arabia, and many suspected that the explosion of TWA Flight 800 was also the work of terrorists. Clinton argued that these tragedies highlighted the need for legislative changes, and he pressed Congress to act before its August recess.

But Congress had a bipartisan tradition of its own to defend. As they had done since Watergate, Congressional leaders raised concerns about civil liberties. Then-Speaker Newt Gingrich said he was willing to consider changes to the law, but vowed to do so “in a methodical way that preserves our freedoms.” Senate Majority Leader Trent Lott vowed that Congress would not “rush to a final judgment” before going on vacation. In the end, the 104th Congress finished its term without giving President Clinton the wiretapping authority he sought.

Today’s Democratic Congress has been far less protective of Americans’ privacy rights. Last August, in a virtual repeat of the events of 1996, Bush demanded that Congress approve expanded wiretapping powers before going on vacation. This time, Congressional leaders showed few qualms about “rushing to judgment.” Indeed, both houses of Congress approved the White House’s preferred legislation with minimal changes within three days of its introduction.

Meanwhile, it seems to be Opposite Day over at the Heritage Foundation, as they chide U.S. senators who want to “include measures in an otherwise bipartisan reform of FISA that would punish US companies that helped US intelligence agencies.” Of course, these senators’ proposals wouldn’t punish anyone; they would merely remove provisions that excuse companies for breaking laws that are already on the books. The companies will only be punished if they broke the law.

Heritage says that these companies “cooperated with government requests to ignore possible technical violations of FISA’s outdated provisions.” That’s a lot of adjectives for one sentence, but it doesn’t change the fact that breaking the law — even a “technical,” “outdated” law — is illegal. I find it surprising that Heritage scholars, who are normally strong champions of the “rule of law” would enthusiastically push the theory that following the law is optional or that the president — who takes an oath to “take care that the laws be faithfully executed” — has the power to authorize other people to break the law on his behalf. He doesn’t, and it would set a dangerous precedent to let those who relied on such assurances off the hook for breaking the law.

Airport Security Technology Stuck in the Pipeline

The Washington Post has a story today on the slow pace of progress in airport security technology. We would see faster development of better, more consumer-friendly security technology if the airlines were entirely responsible for it. Here’s a glimpse of what I said about this in an written debate hosted by Reason magazine a few years ago:

Airlines should be given clear responsibility for their own security and clear liability should they fail. Under these conditions, airlines would provide security, along with the best mix of privacy, savings, and convenience, in the best possible way. Because of federal involvement, air transportation is likely less safe today than it would be if responsibility were unequivocally with the airlines.

Would Telco Immunity Be Unconstitutional?

Via EFF, a fascinating article on the possible constitutional issues raised by the push to give telecom companies retroactive immunity for illegal surveillance. Anthony Sebok points out that the courts have historically held that plaintiffs in tort suits have a constitutionally-protected property interest that the court cannot wipe away without compensation. I’m not a constitutional lawyer, so I won’t venture an opinion on whether his argument is right or not. But I think it does remind us of an important fact: the plaintiffs in these lawsuits are real people whose rights have allegedly been violated by these companies.

The FISA debate raises a lot of interesting policy questions about the appropriate relationships among the government, the courts, and the telecom industry. But while those questions are important, we shouldn’t lose sight of the fact that this debate is also about a contractual relationship between those telecom companies and millions of ordinary customers. Customers had a reasonable expectation that those companies would not share their private data with third parties unless doing so was legally required. It appears that certain large telecom companies may have violated that trust. If so, it seems to me that the customers should have their day in court.

Just How Much Is This Online Gambling Ban Costing Us?

My friend Radley Balko has a post over at Reason’s Hit & Run blog about a recent attempt to discover the terms of a trade deal reached in December between the United States and the European Union. The negotiations started because of America’s wish to withdraw its prior commitment to open its market to overseas gambling service providers. (WTO members are within their rights to do that, but they must offer compensatory market openings in other areas). Recall that the details of that deal were, to put it charitably, vague at the time it was announced.

In an effort to shed some light on the agreement, a fellow named Ed Brayton submitted a Freedom of Information Act request to the Office of the United States Trade Representative asking for the details. No joy – the USTR refused his request on the grounds that the “information…is properly classified in the interest of national security pursuant to Executive Order 12958.”

Presumably the USTR would need to publicly disclose the terms of the deal when (if?) it is ratified by the WTO, but in the meantime Mr Brayton is appealing. Also in the meantime, Antigua and Costa Rica have filed (separate) arbitration requests to the WTO over their compensation package (more here, and a warning – some of the ads on this site are possibly not safe for work).

I will be speaking at a panel event at the Institute for Economic Affairs in London on Tuesday on this very subject.