Legal Revisionism

It’s just prior to the president’s talk concerning FISA lawmaking. The reports are that the president is pushing for retroactive immunity for private parties who provided private information about citizens to the government without warrants, something that is included in the Senate bill, but not the House bill.

Why is there discussion on this? It seems to me that doing this is a form of legal revisionism, a slap in the face to traditional jurisprudence, and certainly it is no expression of conservatism. I forget; is the power of presidential pardon limited to actual persons, and not fictional persons in the form of corporations? Especially if the latter is permitted (not that paying attention to constitutional permissions has been much of a factor so far in executive governance in the current administration), it seems to me that all the protection the president could wish for already exists.

Ah, the speech has started. Bush says that the telecommunications companies have been ‘helping America’ and that it would be ‘unfair’ to let them be exposed to class action lawsuits on the matter. Bush says that they are ‘abusive’ lawsuits. Can’t FISA be used? No, says Bush, it didn’t let us track terrorists quickly and effectively.

I’m not sure about this, but I don’t recall that FISA usage supports the president’s assertions. The great preponderance of warrant requests were granted, and I don’t recall that there was any appreciable delay in the FISA court granting warrants. [Someone with stats said FISA granted 25,000 warrants, and denied 5 warrant requests. That’s about a 0.02% rejection rate. If the warrants were issued randomly, about one in 120 people that you know have been monitored by the government. Since, hopefully, they aren’t issued randomly, you may know considerably fewer — or considerably more — “observed persons”, or be one yourself. My innumeracy corrected by Annyday, see comments. I’ll plead illness. — WRE]

So what recourse would US citizens have against false investigation and exposure of personal communications? If the revision preferred by the president is passed, it appears that this near-impossible task becomes even more remote. The telecommunications carriers who told the government to take a hike until proper warrants were served should be commended, and those who did not respect the rule of law prevailing at the time are properly exposed to the possibility of their clients having legal recourse against them.

At the moment, I’m not impressed with this latest push to erode legal protection of the citizenry. What good does it do to defeat foreign terrorists if in doing so we make our system of governance indistinguishable from the systems those terrorists seem to prefer, with repressive tactics and justice dispensed at the whim of bureaucrats?

Wesley R. Elsberry

Falconer. Interdisciplinary researcher: biology and computer science. Data scientist in real estate and econometrics. Blogger. Speaker. Photographer. Husband. Christian. Activist.

5 thoughts on “Legal Revisionism

  • 2008/02/28 at 12:38 pm

    Iím not sure about this, but I donít recall that FISA usage supports the presidentís assertions. The great preponderance of warrant requests were granted, and I donít recall that there was any appreciable delay in the FISA court granting warrants.

    Wes –

    Isn’t it the case that they can even get a FISA warrant retroactively?

  • 2008/02/28 at 1:06 pm

    I heard that in follow-up discussion, that they have 72 hours to make a warrant request to FISA following starting a warrantless wiretap, and that they can compel cooperation of companies. All in all, I really don’t see why we need an explicit ceding of our already-shredded personal privacy rights.

  • 2008/02/29 at 8:43 am

    I’m not clear on the details of the telecom-immunity clause either. However, I _think_ it’s primarily aimed at companies that aided in the so-called “warrantless wiretapping” program. That program was thought to be legal at the time it was instituted, but political hacks seeking a political advantage chose to portray it as being clearly illegal — in which case any telecom companies that cooperated would be liable and subject to lawsuit. Bush dropped the program when it became a political football, but neither he nor his allies on the Hill have ever wavered from their belief that the program was legal. They don’t believe that any telecom should be sued for cooperating with a program that it was told was legal.

  • 2008/02/29 at 11:22 am

    Yes, but remember that this is the same group of legal eagles who believe that re-naming torture as “interrogation methods” makes it not torture any more. They haven’t exactly excelled at anything except, “If the boss wants to do it, it must be legal.”

  • 2008/03/01 at 3:14 am

    120 x 25000 = 3 million, not the 300 million of US population. I think you’re off by a bit, unless I’m missing something like the birthday paradox entering into your phrasing.

    As a side note, I’m pretty sure I’ve known at least two or three people being monitored under recent legislation. I know a somewhat disproportionate number of Muslims and student activists, and you know the government doesn’t like them.

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