Warrantless Wiretapping Update

Since Congress’s website is always a day behind, I got these results from the Washington Post. Likely the new updated FISA bill is going to sail through Congress. Boy, it’s a good thing the Democrats got into control of Congress so that they could… continue to do whatever Bush told them to do, just like the Republicans whose jobs they took. Go here to throw spitballs at the battleship.

I do not claim to be a bona-fide expert in this area, as I’m not on the Senate Intelligence Committee or a member of the Bush Administration and as such I cannot evaluate the veracity of all of the claims I’ve read regarding the wholesale surveillance of the telecommunications network by the NSA. I don’t know how many serious terrorist plots have been disrupted by this program (there have been claims of “many”), I don’t know exactly what the possibility is for misuse for information gathered by this program (although the capabilities of the technology are pretty staggering, and the mind boggles with the consequences of the misuse could be, there is no real way to evaluate the checks and balances in place).

I do know, however, that one of the central arguments against the Dodd-Feingold amendment to this bill is heavily flawed. I heard today one senator (Democratic, unfortunately I did not catch the name) quoted as saying, “If we don’t include the immunity provision, in the future companies will be reluctant to cooperate with the government.”

This is demonstrably false. Not all telecommunications companies complied with the government’s request to tap their lines, but the majority did so. Those who did so have very, very competent legal departments staffed by lawyers who are intimately aware of federal communications law. It is simply inconceivable that these companies would provide this level of access to the government without being fully aware of the fact that they were violating those laws.

Moreover, it’s a false dichotomy: we want companies to adhere to the law, don’t we? If someone representing a federal agency shows up at your doctor’s office and demands to see your medical records without a warrant, wouldn’t you want your doctor to refuse? Isn’t that the whole point of having illegal search and seizure laws in the first place?

In the interests of full disclosure, it’s my firm belief that the entire bill is bad, and that the push to “updating FISA” is a bunch of baloney. However, I recognize that this is just a belief, and I cannot state this as a solid intellectual position precisely because much of the relevant evidence is being withheld on the basis of “National Security”. Take my complaints about this particular amendment with that in mind. Also, there is a subtle additional point to this whole discussion in that some of the people who voted “no” may have voted for Arlen Specter’s alternative amendment (I’ll try to dig those up later edited -> they’re here, the only differences are that Specter voted for his amendment and “no” on Dodd; and Bacus, Biden, Dodd, Dorgan, and Klobuchar all voted “no” on Specter and “yes” on Dodd; and McCaskill, Nelson, Stabenow, and Webb voted “yes” on Specter and “no” on Dodd), which allows the lawsuits to continue but takes all the liability off of the telecom companies and puts in on the federal government. Personally, I can’t see any reason to vote “no” on that one, even if you buy into the whole “reluctance” argument.

As a tangent off on the topic of political hypocrisy, it is intellectually fascinating that if you intersect the list of “no” voters with a list of senators who voted against immigration reform solely on the position, “I don’t believe in amnesty, they broke the law, they should suffer the consequences” you’ll find more than one commonality…

State	Yes	No	Not Voting
Alabama		Jeff Sessions, Richard Shelby
Alaska		Lisa Murkowski, Ted Stevens
Arizona		Jon Kyl, John McCain
Arkansas		Blanche Lincoln, Mark Pryor
California	Barbara Boxer	Dianne Feinstein
Colorado		Wayne Allard, Kenneth Salazar
Connecticut	Christopher Dodd	Joseph Lieberman
Delaware	Joseph Biden	Thomas Carper
Florida		Mel Martinez, Bill Nelson
Georgia		Saxby Chambliss, Johnny Isakson
Hawaii	Daniel Akaka	Daniel Inouye
Idaho		Larry Craig, Michael Crapo
Illinois	Dick Durbin, Barack Obama
Indiana		Evan Bayh, Richard Lugar
Iowa	Tom Harkin	Charles Grassley
Kansas		Sam Brownback, Pat Roberts
Kentucky		Jim Bunning, Mitch McConnell
Louisiana		Mary Landrieu, David Vitter
Maine		Susan Collins, Olympia Snowe
Maryland	Ben Cardin	Barbara Mikulski
Massachusetts	Edward Kennedy, John Kerry
Michigan	Carl Levin	Debbie Stabenow
Minnesota	Amy Klobuchar	Norm Coleman
Mississippi		Thad Cochran, Roger Wicker
Missouri		Kit Bond, Claire McCaskill
Montana	Max Baucus, Jon Tester
Nebraska		Chuck Hagel, Ben Nelson
Nevada	Harry Reid	John Ensign
New Hampshire		Judd Gregg, John Sununu
New Jersey	Frank Lautenberg, Robert Menéndez
New Mexico	Jeff Bingaman	Pete Domenici
New York	Chuck Schumer		Hillary Clinton
North Carolina		Richard Burr, Elizabeth Dole
North Dakota	Byron Dorgan	Kent Conrad
Ohio	Sherrod Brown	George Voinovich
Oklahoma		Tom Coburn, James Inhofe
Oregon	Ron Wyden	Gordon Smith
Pennsylvania	Bob Casey	Arlen Specter
Rhode Island	Jack Reed, Sheldon Whitehouse
South Carolina		Jim DeMint	Lindsey Graham
South Dakota		Tim Johnson, John Thune
Tennessee		Lamar Alexander, Bob Corker
Texas		John Cornyn, Kay Bailey Hutchison
Utah		Robert Bennett, Orrin Hatch
Vermont	Patrick Leahy, Bernard Sanders
Virginia		John Warner, Jim Webb
Washington	Maria Cantwell, Patty Murray
West Virginia	Robert Byrd	Jay Rockefeller
Wisconsin	Russell Feingold	Herb Kohl
Wyoming		John Barrasso, Michael Enzi