Why the new wiretapping law is a lot worse than you think.

The law, lawyers, and the court.
June 25 2008 3:12 PM

Five Myths About the New Wiretapping Law

Why it's a lot worse than you think.

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This is another bit of face-saving window dressing, and its essence is best captured in a breathtaking remark from Sen. Bond: "I'm not here to say that the government is always right. But when the government tells you to do something, I'm sure you would all agree … that is something you need to do." That more or less sums it up—one part Nuremberg defense, the other part Nixon.

Myth No. 4: The Democrats must fold because of the November election.

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It's no secret that congressional Democrats wanted to resolve the FISA debate before the August convention in order to avoid the perennial charge that they're softies. After the House vote last week, Barack Obama issued a statement backing off his earlier tough stance on telecom immunity. The calculus seemed clear: McCain had just reversed his own position on illegal wiretapping and was spoiling for a fight, arguing that "House Democrats, the ACLU, and the trial lawyers have held up legislation to modernize our nation's terrorist surveillance laws." You can't stand with the trial lawyers and the ACLU if you want to win a general election.

But does it really make sense to stand with AT&T and George W. Bush instead? As the Anonymous Liberal blogger pointed out, you could hardly ask for a more disreputable opposing team than a president with historic-low popularity and a bunch of corporate fat cats. And by reneging on his earlier position, Obama put himself in a box: If he lets the bill sail through the Senate, he will alienate his base. But if he attempts a filibuster or an amendment now, he will appear to be pandering to the objections of Moveon.org and other groups. It would have made more sense for the party leadership and the nominee to stick to their guns.

Myth No. 5: The law will be the "exclusive means" for surveillance.

The Democrats' most pathetic bit of self-deluded posturing involves the inclusion of a clause suggesting that the new law represents the "exclusive means" by which "electronic surveillance and interception of certain communications may be conducted." According to House Speaker Nancy Pelosi, D-Calif., this means "the law is the exclusive authority and not the whim of the president." But, then, FISA always said that it was the "exclusive means." And in 2001, pretty much on a whim, the president set it aside. So for those of you keeping score back home, the Democratic leadership is patting itself on the back for including in the new law a provision that was already in the old law—and which the Bush White House chose to ignore.

Here, then, is the bitter joke of the new legislation: From 2001 to 2007, the NSA engaged in a secret program that was a straightforward violation of America's wiretapping laws. Since the program was revealed, the administration has succeeded in preventing the judiciary from making a definitive declaration that the wiretapping was a crime. Suits against the government get dismissed on state-secrets grounds, because while the program may have been illegal, it was also so highly classified that its legality can never be litigated in open court. And now suits against the telecoms will by dismissed en masse as well. Meanwhile, the new law moves the goal posts, taking illegal things the administration was doing and making them legal.

Whatever Hoyer and Pelosi—and even Obama—say, this amounts to a retroactive blessing of the illegal program, and historically it means that the country will probably be deprived of any rigorous assessment of what precisely the administration did between 2001 and 2007. No judge will have an opportunity to call the president's willful violation of a federal statute a crime, and no landmark ruling by the courts can serve as a warning for future generations about government excesses in dangerous times. What's more, because the proposal so completely plays into the Bush conception of executive power, it renders meaningless any of its own provisions. After all, if the main lesson of the wiretapping scandal is that we need more surveillance power for the government, what is to stop President Bush—or President Obama or President McCain—from one day choosing to set this new law aside, too? "How will we be judged?" Sen. Chris Dodd, D-Conn., asked in a stirring speech deploring the legislation yesterday. "The technical argument obscures the defining question: the rule of law, or the rule of men?"