FISA, Telecoms and the Constitution

That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

Thomas Jefferson wrote those words over 230 years ago as part of one of the two most important documents in the history of this country, the Declaration of Independence. Indeed, our Founding Fathers are said to have believed that the government that they themselves were setting up would likely be short-lived, believing that the Constitution, and even the government itself, might require being entirely overthrown and re-established every 30-50 years or so.

The Second Amendment of our Constitution says "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." This was intended to keep the citizens from becoming powerless, to make sure that should such an overthrow become necessary, should the government begin to usurp powers it wasn't supposed to have, or to restrict rights the founders intended for us, that there would be recourse, the ability to rise up and institute a NEW government, just as they themselves had done.

And so it is not without precedent that I contemplate whether we've arrived at such a juncture. Our government has failed us. Today, our government has declared that the overarching principle, that no man is above the law, is just words. Today our Democratic leaders have shown that even inter-party struggle is not enough to make them stand up for the law and the Constitution. What they would not do out of any innate nobility of spirit or purpose (because I sincerely doubt either party has that in much measure), I had hoped they would do just to check their Republican counterparts. The right thing done for wrong reasons is better than the wrong thing done for wrong reasons.

But today, the last impediment to immunity for the Telecommunications industry for their participation in what seems clearly to be an illegal spying program went down, and with it the hope that we'll likely ever see any justice or even any truth regarding the program, a program which clearly violates the Fourth Amendment to the Constitution, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

The Founding Fathers couldn't have known about the telephone, which would not be invented for another 85 years after that Amendment was ratified, nor the Internet, email or any of the other electronic marvels which we take for granted in today's life. Just as we have to view the Constitution in terms of the language of the day, and recognize that this Amendment DOES convey a right to privacy even if that word in 1791 would have meant "an outhouse", so we also must view the Constitution through the lens of time, understanding that as our methods of communication expanded, so too did the protections against just this type of unchecked prying into our private lives.

It is not that the telecommunications companies will get off scot free that bothers me. Although they have legal departments whose job it should have been to explain the legality of the program to them, there is a certain logic to the argument that they were given assurances by those high in government that the program was legal, and thus might have accepted it as so. It is that by protecting the underlings, so to do we protect the architects of the violation. The underlings should be protected, but as a consequence of the prosecution of those at the top providing the proof that they really did have reason to believe that what they did was legal, not in lieu of it.

Because there can be no more civil cases against the telecommunications companies, there is a very real chance that the details of the program will never come to light. It is, as one commentator on television put it, as though the Congress in the Watergate matter had chosen to immunize the President and codify in law broader powers for him to spy un-Constitutionally instead of preparing Articles of Impeachment against him. It is as if a bank robber, caught red handed, were to be found not guilty by the Court and granted license to rob even more banks. It is as if the Constitution just doesn't matter to our elected officials any more.

I have so very much to say on this topic, I feel it needs to be broken up into sections, so this will end my comments for this post. Over the next few days, I will be posting a few more on the topic. I believe they're all important, but in order not to lose any of them in the maelstrom of words, best if we treat each bit individually.