Seven years ago, President George W. Bush quietly created the Terrorist Surveillance Program, a set of executive directives that secretly authorized intelligence agencies to spy on suspected terrorists without a warrant or judicial oversight, even inside the United States. In 2005, The New York Times exposed the existence of the covert program, and in 2007 Congress granted temporary approval for warrantless wiretaps by passing the Protect America Act. Now, judges and legislators are deciding the future of programs that spy on American citizens – and whether or not we will ever know the full scope of our government’s unauthorized activities.
On Tuesday, the U.S. Supreme Court refused to hear a lawsuit brought by the American Civil Liberties Union against the Terrorist Surveillance program, which the White House claims they have already eliminated. It’s not a surprise that justices rejected the case – a lower court found earlier that the plaintiffs lacked standing, and legislation regarding the program is currently in Congress. But it’s a troubling decision, because it means the American people may have only one more chance to find out just how pervasive the secret program was, and how far it encroached (or may still be encroaching) on their constitutional rights.
The Supreme Court’s decision leaves only one more judicial challenge to the secret program remaining: a class-action lawsuit against AT&T, Verizon and other telecom companies that gave private data and access to their communications pipelines to the government. That case – the last chance to reveal exactly what the Bush administration was up to – is set to be heard by the Ninth Circuit sometime this year, and judges have so far refused to dismiss the suit on national security grounds.
But if Republican legislators get their way in Congress, this final chance could be lost as well. The extension granted last year to the Protect America Act expired last week, and legislators are calling for the latest draft to give a free pass to the companies that colluded to spy on Americans by giving the telecoms immunity from prosecution – an action that would ensure that the scope and severity of warrantless wiretapping remains unknown.
The Republican Party often paints itself as a party of law and order. But when it comes to surveillance, lawlessness seems to be the primary weapon of defense.
How else to describe the proposed amnesty? Proponents argue that such a provision is necessary to ensure that companies cooperate with the government in the future. Of course, this wasn’t an issue when the telecoms first signed on to the program; these companies have a legion of top lawyers who determined that such a program would hold up in court. Furthermore, if what they did was not wrong, that what fear should they have of litigation?
Only the guilty demand immunity from prosecution. Rather than ensuring that the telecoms receive a favor from the government, they should be forced to consider the balance between privacy and security that we all must make in our daily lives. Including an amnesty provision in the latest draft of the Protect America Act – which is likely to pass in one form or another – will only leave Americans in the dark about how our own government has chosen to weigh that balance. Immunity will only beget ignorance and secrecy – an enemy far more dangerous than any terrorist.
