Re: BEST LAW MONAY CAN BUY -- Senate votes Telecom immunity

[David Farber <dave () farber net>]

________________________________________
From: Brad Templeton [btm () templetons com]
Sent: Tuesday, February 12, 2008 10:31 PM
To: David Farber
Cc: ip
Subject: Re: [IP] Re:   BEST LAW MONAY CAN BUY --  Senate votes Telecom immunity

> Both were triggered by the following quote:  "...But supporters of the
> plan said the phone carriers acted out of patriotism..."

They've spun it that way.   And I can see (though don't necessarily
accept) the argument that this might have been the case when
administration officials first came to the phone companies asking them
to make taps without warrants.    The law, the phone company lawyers
should have explained to their clients, was clear.   The telcos were
not to comply without warrants or special short term certifications.

Let us imagine, however, that they were seized with some sense of
urgency about this, that terrorists were plotting and it was necessary
to bypass the law to catch these terrorists as quickly as possible.
I could conceive of how some might view that as an act of patriotism.

For a week or two.

But how long should it have been before the telcos said, "you know, we
acted quickly here because you said we had to, but this isn't really
our call.   We're just telecom executives.   Isn't the question of
whether we should do this more the province of federal judges, such
as in the surveillance court?  Or perhaps of congress?   Now that the
rush is over, why don't we ask them?  That's how the system works, with
checks and balances.  The actions of one branch are overseen by the
other branches.   The law says we should take that role, and say no to
you, and you're telling us it's too urgent and we need to ignore that.
You're even telling us it's all legal, though frankly our lawyers say
it's no slam dunk.  Why can't we ask a judge?"

I don't know what went on in the minds of the telcom executives or their
lawyers, or the NSA officials.  I don't know what was said.  But this
is what should have been said.   Instead, it went on, not just for a
few weeks, but for years, and years, and years.

That's why we have a system of checks and balances.  It's not supposed
to be all done by one branch.  It's not supposed to be private parties
making the call on whether to do this, whether you think that call is
patriotic or destructive.   We have it worked out -- multiple branches of
government are supposed to be involved when the bill of rights is being
torn or even stretched.   A patriot would know this, would say this,
I hope.   The phone company is supposed to say, "OK, I see that you NSA
folks want a tap, and I see these judicial folks approved it following the
rules those legislative folks passed.  Then, and only then can we do it."

No judgement call for them, other than to notice that all the branches
are not doing their part.

Advocates of this immunity, I imagine, want the President to be able
to do this again in an "emergency."   Perhaps there are emergencies
where society wants to grant the President this power, I don't know.
But this was no emergency, and no matter what you think of the program,
it should have been subject to the same rules as any other such program,
and as far as I can tell, it wasn't.

And that's one of the reasons why we're suing.  (By way of disclosure,
I am with the EFF -- as is Dave Farber -- which is persuing the main case
against AT&T, but not making official or legal statements for it, or about our
case, here.  I'm speaking for me.)

Like Darth Sidious/Palpatine in Star Wars, the President got to say
"I will _make_ it legal" and the Senate seems ready to back him up.
And while I won't deny we are trying to fight the surveillance program
with our lawsuit, even if you agree with the program you don't have
to agree with immunity for over 6 years or lawbreaking.   Leaving out
immunity doesn't help terrorists.   What it does is help us send the
message that you can't bypass the other branches of government, and
private companies shouldn't help you do that.  That message has nothing
to do with being strong or weak on terrorism.  It has to do with being
strong on the checks and balances in the constitution that are there to
protect the rights of the people.

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