All Americans vulnerable to legal government snooping

It's illegal for the government to listen in on Americans' phone conversations or track their phone or online activities without a warrant. That statement should be beyond dispute. But it isn't. Beginning in September 2001, President Bush ordered the National Security Agency, among other government agencies, to spy on Americans' communications.

By any reasonably interpreted legal standards in place then or now, he was breaking the law.

Thanks to a newspaper report, Americans found out what Bush was up to in December 2005. They also found out that the administration had won the collaboration of several major telecommunications companies, which gave the government access to their communications networks.

Bush didn't stop NSA spying until early 2008 -- and only because Congress refused to authorize the program beyond a stop-gap measure it had approved in August 2007. That spark of courage didn't last. In ate June, the House of Representatives voted 293-129 to legalize what the 4th Amendment and its own statutory precedents clearly forbid: Government spying on Americans' phone or Internet communications, whether or not terrorism is suspected. Companies that collaborated with the government between 2001 and 2007, without their customers' knowledge, will be given immunity from customers' lawsuits if a judge can certify that the companies were responding to "legitimate" government demands for collaboration.

White House and congressional leaders who brokered the deal are missing the point of constitutional protections. They're not intended primarily to protect against foreigners or terrorists or, for that matter, corporations. They're designed primarily as protections of individuals against government abuses of power. The 4th Amendment forbids government from snooping or searching around citizens' properties absent a warrant. That the government declares a spying operation involving private companies' resources and customers "legitimate" shouldn't make it so. Now, assuming the Senate follows the House's lead and Bush signs the legislation, it will. That's the meaning of the new spying law Congress is about to approve: If the government says it's not abusing its powers, then it isn't.

Supposedly, the government only tracks communications involving suspicious persons, or Americans who happen to be communicating with suspicious persons abroad. How does the government know you might be talking to a suspicious person? Go figure. What's known is that millions of communications are tracked, raising the absurd possibility that millions of Americans are communicating with millions of suspicious persons. The new law would have the government responsible for insuring that information gathered outside the scope of anti-terrorism will be protected. But it was precisely government's access to that information that enabled the Nixon administration to spy on its enemies, and Congress to draw up legislation, in 1978, forbidding domestic spying.

Congress' Democratic leaders and the White House are calling the new law a compromise that still gives the so-called Foreign Intelligence Surveillance Court a role in ensuring, after the fact, that the spying is legitimate, while giving telecommunications companies likely immunity from lawsuits. We call it an indefensible cave-in by Democrats, who seem to be putting their own election-year positioning ahead of 300 million Americans' civil liberties.

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