News & Commentary

The WSJ has a good article up about surveillance cameras up on the streets of Chicago:

It was disappointing last week to watch the president sign legislation designed to deny my clients their day in court. That, however, is precisely what President Bush attempted to do when he signed into law the so-called FISA Amendment Acts (FAA) last Thursday. For the past year or so, I have served as a co-lead coordinating counsel for the nearly 40 cases currently challenging the nation's largest telecoms' collaboration with the government in spying on innocent Americans without a warrant. These cases now pending in the courtroom of Judge Vaughn Walker in the Northern District of California were the subject of great controversy during the debate and passage of the FAA.The controversy derives from the fact that the FAA provides a "get out of jail free card" for the telecoms. It is an attempt to see that neither the phone companies nor members of the Bush administration will ever be held accountable for their decision to invade the privacy of millions of innocent Americans under the guise of investigating terrorism. The law hailed by the president last week says that in order to gain legal immunity for their actions, the telecoms simply must show that they received a request from the government to do the spying, not that the request itself was lawful. This provision is ludicrous, since everyone involved in the debate knows that the government made such a request to the phone companies. The real question is: Was the request lawful? This is the question asked by our litigation - one ignored by Congress and the White House.Still, we expect that the Bush administration will move quickly to dismiss all the pending cases relying on the provisions of the FAA.We intend to challenge all efforts to dismiss our cases. We believe that our clients deserve their day in court. Moreover, we believe that pursuing these cases is the only way that the American people will ever know the scope and breadth of the White House's illegal spying program - since Congress rejected even a straightforward proposal to delay providing immunity to the telecoms until after the Congress conducted a full-fledged investigation of the president's illegal program.Most important, we believe the provision of the FAA providing the telecoms with immunity violates the fundamental constitutional principle of separation of powers. Under our system, Congress simply cannot substitute their judgment for an independent federal judge in a matter that is pending before the court. We trust our courts to find facts and apply those facts to the law, carefully and without political posturing or bias. In this instance, Congress did not change the substance of the law; they simply chose to forgive the telecoms for breaking that law, suggesting that there are mitigating circumstances (although those "mitigating" factors surely have been overstated) that must be taken into consideration.This is not a decision for the Congress. This is the role of the courts, where we look forward to vigorously defending our position.Crossposted at the ACLU Blog Of Rights

EARLIER this month, the Senate Intelligence Committee and the White House agreed to allow the executive branch to conduct dragnet interceptions of the electronic communications of people in the United States. They also agreed to "immunize" American telephone companies from lawsuits charging that after 9/11 some companies collaborated with the government to violate the Constitution and existing federal law. I am a plaintiff in one of those lawsuits, and I hope Congress thinks carefully before denying me, and millions of other Americans, our day in court.During my lifetime, there has been a sea change in the way that politically active Americans view their relationship with government. In 1920, during my youth, I recall the Palmer raids in which more than 10,000 people were rounded up, most because they were members of particular labor unions or belonged to groups that advocated change in American domestic or foreign policy. Unrestrained surveillance was used to further the investigations leading to these detentions, and the Bureau of Investigation - the forerunner to the F.B.I. - eventually created a database on the activities of individuals. This activity continued through the Red Scare of the period.In the 1950s, during the sad period known as the McCarthy era, one's political beliefs again served as a rationale for government monitoring. Individual corporations and entire industries were coerced by government leaders into informing on individuals and barring their ability to earn a living.I was among those blacklisted for my political beliefs. My crime? I had signed petitions. Lots of them. I had signed on in opposition to Jim Crow laws and poll taxes and in favor of rent control and pacifism. Because the petitions were thought to be Communist-inspired, I lost my ability to work in television and radio after refusing to say that I had been "duped" into signing my name to these causes.By the 1960s, the inequities in civil rights and the debate over the Vietnam war spurred social justice movements. The government's response? More surveillance. In the name of national security, the F.B.I. conducted warrantless wiretaps of political activists, journalists, former White House staff members and even a member of Congress.Then things changed. In 1975, the hearings led by Senator Frank Church of Idaho revealed the scope of government surveillance of private citizens and lawful organizations. As Americans saw the damage, they reached a consensus that this unrestrained surveillance had a corrosive impact on us all.In 1978, with broad public support, Congress passed the Foreign Intelligence Surveillance Act, which placed national security investigations, including wiretapping, under a system of warrants approved by a special court. The law was not perfect, but as a result of its enactment and a series of subsequent federal laws, a generation of Americans has come to adulthood protected by a legal structure and a social compact making clear that government will not engage in unbridled, dragnet seizure of electronic communications.The Bush administration, however, tore apart that carefully devised legal structure and social compact. To make matters worse, after its intrusive programs were exposed, the White House and the Senate Intelligence Committee proposed a bill that legitimized blanket wiretapping without individual warrants. The legislation directly conflicts with the Fourth Amendment of the Constitution, requiring the government to obtain a warrant before reading the e-mail messages or listening to the telephone calls of its citizens, and to state with particularity where it intends to search and what it expects to find.Compounding these wrongs, Congress is moving in a haphazard fashion to provide a "get out of jail free card" to the telephone companies that violated the rights of their subscribers. Some in Congress argue that this law-breaking is forgivable because it was done to help the government in a time of crisis. But it’s impossible for Congress to know the motivations of these companies or to know how the government will use the private information it received from them.And it is not as though the telecommunications companies did not know that their actions were illegal. Judge Vaughn Walker of federal district court in San Francisco, appointed by President George H. W. Bush, noted that in an opinion in one of the immunity provision lawsuits the "very action in question has previously been held unlawful."I have observed and written about American life for some time. In truth, nothing much surprises me anymore. But I always feel uplifted by this: Given the facts and an opportunity to act, the body politic generally does the right thing. By revealing the truth in a public forum, the American people will have the facts to play their historic, heroic role in putting our nation back on the path toward freedom. That is why we deserve our day in court.Studs Terkel is the author of the forthcoming "Touch and Go: A Memoir."Crossposted in the New York Times.