Tuesday, March 18, 2008

Wiretapping's true danger

This op-ed in the Los Angeles Times by Julian Sanchez on the ongoing debate over the issue of government warrantless wiretapping provides a critical component to the larger debate our nation is currently engaged in (well, some of us).

The point he makes has actually not received the attention it should have to date: that being that the "privacy of the average Joe...obscures the deeper threat that warrantless wiretaps pose to a democratic society. Without meaningful oversight, presidents and intelligence agencies can -- and repeatedly have -- abused their surveillance authority to spy on political enemies and dissenters."

This concern, that for instance, the Bush administration could in fact be using there expanded power to eavesdrop on Americans (and consequently future administrations), with the help of the phone companies, to tap the phones of progressive and anti-war political groups, peace protesters, democratic opponents on the hill, or maybe even bloggers and plain old activists that pose some sort of perceived "threat" to the government.

In fact, FISA was created BECAUSE of these very abuses by President Richard Nixon. So, as I contemplate a future - assuming this administration is successful - in which the government is allowed to wiretap Americans without warrants, and the corporations that help them are immune to prosecution, my number one concern would probably be the way these powers could serve to stifle dissent and preserve power.

This scenario, and these expansive powers, could come in the form of blackmail, character assassination, the gaining of strategic advantage by knowing what your "opponents" are going to do next, or even by the very fact that once a free society allows for the very idea that the government is listening, by definition, this would serve to stifle and suppress those that want to speak out more, but have become afraid.

On that note, let me turn it over to Julian Sanchez's great piece in the LA Times:

The original FISA law was passed in 1978 after a thorough congressional investigation headed by Sen. Frank Church (D-Idaho) revealed that for decades, intelligence analysts -- and the presidents they served -- had spied on the letters and phone conversations of union chiefs, civil rights leaders, journalists, antiwar activists, lobbyists, members of Congress, Supreme Court justices -- even Eleanor Roosevelt and the Rev. Martin Luther King Jr. The Church Committee reports painstakingly documented how the information obtained was often "collected and disseminated in order to serve the purely political interests of an intelligence agency or the administration, and to influence social policy and political action."


It's probably true that ordinary citizens uninvolved in political activism have little reason to fear being spied on, just as most Americans seldom need to invoke their 1st Amendment right to freedom of speech. But we understand that the 1st Amendment serves a dual role: It protects the private right to speak your mind, but it serves an even more important structural function, ensuring open debate about matters of public importance. You might not care about that first function if you don't plan to say anything controversial. But anyone who lives in a democracy, who is subject to its laws and affected by its policies, ought to care about the second.


Harvard University legal scholar William Stuntz has argued that the framers of the Constitution viewed the 4th Amendment as a mechanism for protecting political dissent...In that light, the security-versus-privacy framing of the contemporary FISA debate seems oddly incomplete. Your personal phone calls and e-mails may be of limited interest to the spymasters of Langley and Ft. Meade. But if you think an executive branch unchecked by courts won't turn its "national security" surveillance powers to political ends -- well, it would be a first.

Click here to read the article in its entirety.

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