Liberty Street: Bill of Rights, Amendments I and IV, R.I.P.

Somehow, I am not reassured by the Senate Judiciary Committee's promise not to give the telecoms retroactive immunity for helping the Bush administration with its warrantless surveillance program -- unless they know what the companies did and then decide that they were "good citizens and ... supplied information which was important."

As Scarecrow points out, given what we already know about the nature of the warrantless surveillance program, added to Congress's craven refusal so far to do anything about the executive branch's complete disregard for established law, it's hard to feel anything but cynical:

On Monday, Verizon, one of the nation’s largest telecom companies, acknowledged that in hundreds of instances since 2005, it gave the Bush Administration access to its customer’s private communications without warrants required by the FISA, federal communications statutes and the US Constitution. Other major US companies are undoubtedly doing the same (except Qwest?) but simply haven’t acknowledged it fully.

The FBI has used thousands of warrantless National Security Letters to require the companies to reveal records of telephone calls of suspected targets, the calls made by everyone the targets called, and the calls of everyone that second group called. The only reason the companies may have balked at disclosing the second or third circle of “friends” is because, they claim, they didn’t compile records in that manner.

On Administration orders, the companies refuse to tell Congress the full extent of their cooperation or the nature of the surveillance programs they have been operating. As Kagro X and emptywheel have noted, we’ve now reached the absurd stage in which Bush/Cheney are effectively invoking the “State secrets” doctrine — a doctrine created by courts to keep sensitive national security information from non-secure court proceedings — to prevent Congress from knowing how the executive and private companies violated Congressional statutes.

[...]The regime’s message to [Congress] is clear: you are not entitled to know what a lawless executive branch is doing nor allowed to know what telecom corporations are doing in violation of the law and their promises to maintain the privacy of their customers. Yet you are expected to pass legislation providing retroactive immunity from still unknown unlawful actions ordered by the government.

The Administration is now operating entirely outside the Constitution, while being cheered on by its rightwing supporters and with apparent Beltway acquiescence. And Congress has done nothing about it. So it is only slightly encouraging that Senators Leahy and Specter are claiming they will oppose retroactive immunity unless/until Congress is fully informed about the nature and extent of the surveillance programs and the companies’ complicity. These promises ring hollow against reports that the Senate bill will likely include retroactive immunity, while the House version now moving to the floor [see Marcy’s take at TNH] would allow so-called “basket” warrants instead of particularized, case-by-case warrants historically required under the Constitution’s Fourth Amendment. ...