Shame On Them Is Right
"Shame on us," Senate Judiciary Committee ranking member Patrick Leahy (D-Vt) said today as he held up a copy of USA Today's phone-record story, the one that prompted the President of the United States to trot himself out in front of reporters and say, well, say nothing that helps explain why the government in the name of fighting Al Qaeda is contracting with phone companies to catalogue billions of phone calls made by regular old Americans.
Shame on Congress is right. Only one branch of government can proactively perform a check on what the NSA is doing at the behest of the White House. Only one branch can force the executive branch to justify its massive and logically-suspect dragnet. Only one can require those telephone companies to publically explain why their customers were not informed of the data collection, much less defended from it. And yet that branch is both unable and unwilling to do anything meaningful to at least force both the snoopers and their corporate conspirators to come clean. It is a dark hour for the legislative branch of the federal government.
Congress deserves the scorn now being heaped upon the President, and the NSA, and those phone companies. From the latter we should expect nothing more than this outrageously choreographed symphony of spying. It is the mission of the NSA to spy-- why should we expect the agency to turn touchy-feely with our privacy rights? It is the mission of the offending companies-- Verizon, AT&T and Bell South were the ones named by USA Today-- to make money for their shareholders, which surely they are doing through those government contracts. And it is the mission of President Bush, stated over and over again and this morning as well, to prevent another terrorist attack.
That these three missions coalesce around the intrusion of our privacy rights is of little moment to the folks who are tabulating our telephone calls or permitting it to be done. Their interests, especially in this case, are not our interests; not the interests of the regular old citizen who would like to think that by picking up the telephone and ordering a pizza (or hooking up for phone sex, for that matter) isn't a federal case. For folks like that, we have the Congress, which is supposed to be the People's house. The Senate and the House of Representatives are supposed to look out for us when no one else will. And these latest NSA developments suggest that we are rapidly approaching the point when no one else will.
You are going to hear a lot of talk over the next hours and days about the legal liability of the telephone and internet companies to cooperate with the government in this fashion. The issue is not as clear cut as you would think. First, such companies have been cooperating with the feds for quite some time in such a fashion. It is NOT news that these companies give over our records to the feds when we would rather they not do so. Second, there is at least a little case law suggesting that telephone companies do not violate their customers fourth amendment rights when they turn over records without a warrant. And, third, the companies would surely argue that they are operating under color of law and are thus immune from any damage request.
You also are going to hear a lot of talk from the feds about the necessity of such a program, such an expansive search. But surely the Al Qaeda soldiers the government says it is looking for in America know that their phone calls might be monitored; surely they are smart enough to realize that they are vulnerable when they communicate electronically. For the President or the NSA to suggest otherwise is absurd. And that's why Congress has been positively shameful in failing as a body to push for more answers, and for more public answers, about why the domestic spying program has evolved into what we know it is today (never mind what it might actually be today).
The Center for Constitutional Rights, a left-leaning group, announced today that 72 members of Congress had expressed support for the CCR's efforts to challenge the NSA spying program in court. If my math is correct, and sometimes it is, that is about one-eighth of the total number of pols in the House and Senate. That's not nearly good enough and at least Sen. Leahy has the courage to say so.
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