NO-QUESTIONS WIRETAPPING - "liberty theater"

coderman coderman at gmail.com
Sat Mar 11 03:06:25 PST 2006


let's call this particular form of freedom lip service: "liberty theater"

it's been quite a show and only promises to get even more entertaining... :)

---cut---

http://www.oregonlive.com/commentary/oregonian/index.ssf?/base/editorial/114195753619950.xml&coll=7

NO-QUESTIONS WIRETAPPING
Friday, March 10, 2006
David Sarasohn

R emember that fundamental principle -- the one that got everybody so
upset when they first heard about the National Security Agency's
freelance wiretapping -- that says that if the U.S. government wants
to listen to your phone calls, it needs to get a court's permission?

George W. Bush used to talk about it when he was running for re-election.

Some people call it the Fourth Amendment. Remember it?

The U.S. Senate Select Committee on Intelligence has a message for you
about that principle: Forget it.

After months of huffing and puffing and declaring its determination to
stand up for the Constitution against the White House, the committee
-- or at least its eight-member GOP majority -- has decided resolutely
to get out of the way.

As a result, the majority is now supporting a proposal that would
allow the Justice Department, for the first time ever, to listen in on
phone calls without telling anybody -- courts or Congress.

But only for 45 days.

The 45-day limit is the committee Republicans' idea of a
constitutional limit on executive power. Not that the eavesdropping
would have to stop after 45 days -- although if it did, nobody outside
the executive branch would ever know that the wiretapping had happened
-- or that after 45 days a court would have to give its approval. The
most the Intelligence Committee dares to suggest is that after
listening to someone's phone calls for a month and a half, the
government would have to tell a congressional subcommittee that it
wants to keep doing it.

This is not your father's Fourth Amendment. It's not even George
Bush's father's Fourth Amendment.

"Aside from the civil liberties dimension," William C. Banks, a law
professor at Syracuse University, told The New York Times, "there's an
invitation here to the president to go on indefinitely with
warrantless surveillance."

It's not like there's any principle involved.

"The Constitution has always been a teeter-totter between collective
security and individual privacy," says Sen. Ron Wyden, D-Ore., a
minority member of the committee. "This new proposal moves the
teeter-totter very significantly in one direction.

"I think this is a significant skewing of the balance. We're on the
brink of some approaches the committee will regret, and the country
will regret."

Remarkably, Republican committee members are preening themselves on
resisting White House pressure. The committee did turn down the
proposal of Sen. Mike DeWine to simply declare whatever the
administration had done to be legal -- without delving very deeply
into what the administration has done.

The majority's reluctance to bother the White House by pursuing the
facts needed to conduct oversight is likely to limit any efforts the
committee might make in the future; as Wyden notes, "Congress can't
possibly legislate in a bipartisan manner with the level of
information we've got now."

There are other interesting things for Congress to examine. The
administration claims its judge-free wiretap power comes from the
congressional authorization of force following Sept. 11, 2001.
Thursday, the Washington Post quoted David S. Kris, associate deputy
attorney general in charge of national security issues from 2000 to
2003, that "In sum, I do not believe the statutory law will bear the
government's weight. . . . I do not think Congress can be said to have
authorized the NSA surveillance."

You might think that point would interest the congressional majority,
although nobody wants to be so impolite as to bring it up.

It hasn't been a heartening stretch for congressional GOP leaders
concerned about constitutional rights. Senate Judiciary Committee
chairman Arlen Specter just floor-managed the reauthorization of the
Patriot Act while insisting that he had many concerns about it, and
promising to produce separate legislation to deal with them --
although by renewing the bill, he's abandoned any leverage on the
issue.

Maybe he can bring it up again under the new Bill of Rights 45-day
exception rule.

Of course, if Specter later remembers his constitutional concern, it's
not hard to imagine the Senate majority and White House response:

Forget it.

David Sarasohn, associate editor, can be reached at 503-221-8523 or
davidsarasohn at news.oregonian.com.
---end-cut---





More information about the cypherpunks-legacy mailing list