If you’ve followed this blog for some time now, you know one of my biggest political concerns is civil liberties. Sure, I’m progressive, but where civil liberties are involved, I think the issues are (or should be!) nonpartisan. We all benefit from the freedoms granted in the Constitution, and the freedoms that have been expanded through judicial review (the judicial review, by the way, that the right-wing likes to demonize as “judicial activism”).

The renewal of the FISA bill passed in August is now going through the Senate, thanks to the bill that’s emerged from the Senate Intelligence Committee. A similar version from the Senate Judiciary Committee, which didn’t include retroactive immunity, did not permit blanket warrants, and restored oversight, was ignored by Senate Majority Leader Harry Reid, and is now making its way to the Senate floor. I’ve posted a few entries about this before, here and here. In this second entry, I talk about Senator Chris Dodd (D-CT) potentially placing a hold on the bill and promising to filibuster it.

Since I last wrote about FISA, Dodd did place a hold on the bill. However, Reid ignored the hold (whereas he has honored holds by others), breaking decades-long Senate tradition and going against a member of his own party. Dodd is now prepared to filibuster the bill, and is reportedly flying back to D.C. from Iowa, and will be at the Capitol first thing in the morning. There are far better posts elsewhere about this, but I’d like to do my part and encourage you to contact your Senators and representatives to fight on behalf of Dodd, and to reject the version of the FISA bill now being advanced by Reid. For a better write-up of Reid’s behavior, check this post by Glenn Greenwald over at Salon; Greenwald is a constitutional lawyer whose writings about FISA and constitutional issues has been outstanding.

For those of you who are uncertain as to what FISA is all about, or what is permitted, here’s a couple links for you. The first is a section-by-section analysis of the bill under consideration by the ACLU, and the second is a blog post by looseheadprop at FireDogLake.

The central issue at question is not that folks like me don’t want the government to gather intelligence about anti-American activities, especially abroad; the key problem here is that the FISA court was established in the late 1970’s, in the wake of the Church Committee’s investigations into governmental abuses by agencies such as the FBI, who was spying on Americans, both notable and ordinary. Bush and his crowd deliberately violated FISA, admitted it publicly, and is now trying to retroactively fix it so that no one will be punished for breaking the law. Additionally, these illegal activities go against the Fourth Amendment, effectively gutting our Constitutional rights.

The Fourth Amendment was drafted and designed to protect Americans from violations against their privacy and activities without a warrant. At the time, the British entered homes without due cause, without warrants or any other valid documentation, and would overturn a house or business, either in search of evidence, or as a tactic grounded in fear. Following the American Revolution, the drafters of the Constitution decided to amend their original document through the Bill of Rights, and the Fourth Amendment directly addresses the fears of a people who had experienced an invasive, intrusive, abusive government.

Since then, of course, our society and communications network has changed dramatically, but the core principles remain the same. The original FISA court and legal framework was established to allow the government to protect the country, but with safeguards protecting its citizens in place. The battle we are now seeing is a brazen attempt by this administration to overturn and destroy these safeguards.

To those who say that I protest too much: it’s not that I have anything to hide; I don’t want my e-mail pre-screened, my postal mail opened, examined, and resealed, and my phone calls monitored without a warrant. I don’t want this happening because it is against the law. Our nation was founded on Constitutional principles, and to turn our back on these rights is to change America forever. Because once we give up or allow limitations on these rights, it becomes that much harder to regain them.

I am against permitting retroactive or potential immunity for the telecommunications companies for a number of reasons. First of all, these companies have a social and legal obligation to protect my privacy, and by allowing the government to use their networks to examine Americans’ communications, they have violated these obligations. Second, it’s possible that their cooperation with the government is necessary, but we as a country need to know that it is so. By granting immunity in any form, there will be no way for anyone to know how this started, why it happened, who it has affected, and most importantly, whether any abuses have occurred. If immunity is granted, it will tie the courts’ hands in determining what is legal, and what is not. For the record, a federal judge has already ruled against AT&T’s attempt to dismiss a lawsuit against it for participating in the government’s surveillance program. As Judge Vaughn R. Walker stated,

no prior case dismissed… “involved ongoing, widespread violations of individual constitutional rights, as plaintiffs allege here….The very subject matter of this action is hardly a secret…Public disclosures by the government and AT&T indicate that AT&T is assisting the government to implement some kind of surveillance program.” [emphasis is mine]

It isn’t a secret. We all know the telecoms are involved. We know the government has a surveillance program in place. What we as a people deserve is the right to know that such participation and such programs are not abusing the inherent rights of the American people. But the bill that Reid is pushing will ensure we’ll never know that.

Thirdly, the claim right now is that this was all necessary because of 9/11. But there are disturbing trickles here and there from people who would know that this all began to happen well before 9/11. As this article in today’s New York Times states,

In a separate N.S.A. project, executives at a Denver phone carrier, Qwest, refused in early 2001 to give the agency access to their most localized communications switches, which primarily carry domestic calls, according to people aware of the request, which has not been previously reported. They say the arrangement could have permitted neighborhood-by-neighborhood surveillance of phone traffic without a court order, which alarmed them.

The government wasn’t just trying to gain access via Qwest either. AT&T was also co-opted:

Other N.S.A. initiatives have stirred concerns among phone company workers. A lawsuit was filed in federal court in New Jersey challenging the agency’s wiretapping operations. It claims that in February 2001, just days before agency officials met with Qwest officials, the N.S.A. met with AT&T officials to discuss replicating a network center in Bedminster, N.J., to give the agency access to all the global phone and e-mail traffic that ran through it.

The accusations rely in large part on the assertions of a former engineer on the project. The engineer, who spoke on the condition of anonymity, said in an interview that he participated in numerous discussions with N.S.A. officials about the proposal. The officials, he said, discussed ways to duplicate the Bedminster system in Maryland so the agency “could listen in” with unfettered access to communications that it believed had intelligence value and store them for later review. There was no discussion of limiting the monitoring to international communications, he said.

“At some point,” he said, “I started feeling something isn’t right.”

The article then states that two co-workers rebutted this claim, but then goes on to quote the engineer’s attorney:

“What he saw,” said Bruce Afran, a New Jersey lawyer representing the plaintiffs along with Carl Mayer, “was decisive evidence that within two weeks of taking office, the Bush administration was planning a comprehensive effort of spying on Americans’ phone usage.” [Emphasis is mine]

This bothers me. I’d like some answers. The only way to get these answers is to ensure the executives of these companies step forward to testify, which is something they won’t have to do if immunity is granted. It’s not the first instance of someone at AT&T stepping forward with concerns about government spying either, as this article in the San Francisco Chronicle relates. Mark Klein, a now-retired technician, had questions and reservations right from the start, when he allowed someone from the National Security Agency into an AT&T office in San Francisco:

A year or so later, [Klein] stumbled upon documents that, he said, nearly caused him to fall out of his chair. The documents, he said, show that the NSA gained access to huge amounts of e-mail, Web search and other Internet records of more than a dozen global and regional telecom providers. AT&T allowed the agency to hook into its network at a facility in San Francisco and, according to Klein, many of the other telecom companies probably knew nothing about it.

This means it’s not just landlines, it’s the internet as well, and a whole lot of other areas regarding communications. As the NYT article makes clear, a lot of the fuss is because everything is now digital. It’s also attracting attention because everyone wants to believe this is about the “war on terror.” I don’t think so; I suspect it’s a potential war on Americans. As Klein notes,

Contrary to the government’s depiction of its surveillance program as aimed at overseas terrorists, Klein said, much of the data sent through AT&T to the NSA was purely domestic… Klein said he decided to go public after President Bush defended the NSA’s surveillance program as limited to collecting phone calls between suspected terrorists overseas and people in the United States. Klein said the documents show that the scope was much broader.

Where will it stop? It isn’t just landlines, postal mail, or the internet either. This recent Washington Post article points out that now the feds are starting to focus on tracking cellphones, and there are concerns about how to do so.

Federal officials are routinely asking courts to order cellphone companies to furnish real-time tracking data… In some cases, judges have granted the requests without requiring the government to demonstrate that there is probable cause to believe that a crime is taking place or that the inquiry will yield evidence of a crime… Such requests run counter to the Justice Department’s internal recommendation that federal prosecutors seek warrants based on probable cause to obtain precise location data in private areas.

I’ve edited it a bit– the government ostensibly wants to do this so they can track “drug traffickers, fugitives and other criminal suspects.” In other words, people most of us would approve the government conduct surveillance on. But in the wake of the furor over FISA, I think it would be prudent if legal boundaries were clarified and protections put in place. We as a nation need to have the ability to be protected, but not at the cost of our freedoms. Right now, it’s all very nebulous, as this quote makes clear:

“Most people don’t realize it, but they’re carrying a tracking device in their pocket,” said Kevin Bankston of the privacy advocacy group Electronic Frontier Foundation. “Cellphones can reveal very precise information about your location, and yet legal protections are very much up in the air.”

So you can see why I’m not really ready to support the corporate guardians of our communications, whether it be a local wireless company or a corporate telecommunications giant like AT&T. Immunity can always be granted later. Deals can always be made. But any lawyer worth his or her salt does not grant immunity or make deals of any kind before the facts are known. This is something most of us know, just from watching legal shows on TV. It’s also common sense; if you don’t know the details about something, how can you decide an appropriate response? How can you forgive and forget if you don’t know what it is you’re forgiving and forgetting? Is blind trust something we really want to be doing? Blind trust is something I might do at church, since faith and trust are a large part of religion. But you’ll excuse me if I don’t apply the same principles to the government and to politics.

I also don’t think blanket warrants should be permitted. This will open the door to abuse, because the government could just easily throw twenty names of innocent people in with one or two known and suspected criminals or “persons of interest,” as they like to say, and monitor the entire communications of all those under a blanket warrant. It really is an invitation to snoop, and a gross violation of the Fourth Amendment.

This is why I’ll be watching and waiting tomorrow, and hoping against hope that Dodd prevails in his filibuster. Because I have absolutely no interest in living in a state where the government spies on its own people without accountability.