Don’t be fooled by all of the
partisan bickering. Congress’ recent debate over enacting a new federal wiretapping
statute boiled down to one very simple question: should Congress transfer the
authority to approve wiretaps from judges, whom the constitution specifically entrusts
with this power, to the intelligence agencies and the Department of Justice,
who conduct the surveillance?
For most of
the last century, prior to the Bush gang’s exploitation of the post-9/11
hysteria, the courts approved individual wiretap applications. This reasoning
was crystal clear: The whole intent of the Fourth Amendment is thwarted by
having the very people doing the snooping be the ones to approve their own
snooping! Permission (“warrants”) to search (or eavesdrop) has to be given by a
judge in the form of a search (or wiretap) warrant. In this way, the judicial
branch of government keeps some check on the executive branch’s law enforcement
and intelligence operations.
The Protect America Act,
passed on August 5, almost entirely cuts the judiciary out of this process. The
intelligence agencies and DOJ lawyers thus have been given the power to conduct
electronic surveillance, on their own, of telephone calls involving American
citizens, located on American soil, when those calls involve one party located
abroad. Thus, all foreign phone calls made or received by Americans are subject
to warrantless wiretapping, without the approval of a judge. This is unprecedented.
Perhaps the only good news about the Protect America Act is that it expires in
180 days, at which point it will be reevaluated.
Is there any reason to believe that
FBI, CIA and NSA agents and Department of Justice lawyers are somehow more
trustworthy than federal judges who are appointed for life (to assure their
independence) by a President and confirmed by the Senate? I’ve practiced
criminal and civil liberties law for some four decades. I’ve come across a lot
of Department of Justice officials and prosecutors, as well as FBI and other
federal law enforcement and intelligence agents. Likewise, I’ve appeared before
a lot of federal judges. I haven’t liked all of the judges, but I can say
without reservation that, as a group, federal judges are far more trustworthy
than prosecutors and agents.
After all, within the last year,
just in Boston,
a federal judge found a federal prosecutor to have lied under oath about his
misconduct in a criminal prosecution,
and, more recently, United States District Judge Nancy Gertner issued a long
and detailed opinion that awarded $101 million to the victims of an FBI operation
that encouraged a hoodlum-turned-cooperating-witness to give false testimony
convicting four innocent men in a state murder and sentencing three to death
row. And what about the federal agents in recent decades who have been convicted
of selling classified secrets to the enemy or
otherwise disclosing classified material entrusted to them? How
many federal judges have recently been charged with, much less convicted of,
espionage? None comes to mind.
Whom would you trust to protect
both national security and the Constitution? I’ll put my money on the judiciary
any day, just as the drafters of the Fourth Amendment did, but as the Congress
failed to do. This is not rocket science. We voters have been swindled by the
idiots, scoundrels, and cowards in the Congress. Hopefully they’ll get some
brains and some backbone when it comes time to review this pathetic statute.