by Kagro X
I have good news, and I have bad news.
First, the good.
After more than eight months in limbo, a bill that would criminalize the practice of lying to obtain the telephone records of private citizens passed the Senate late Friday. The Senate approved the anti-pretexting bill by a voice vote. The House passed it in April. It now goes to the White House for approval. "Stealing someone's private phone records is a criminal act that can now be prosecuted," said Sen. Chuck Schumer, D-N.Y., lead sponsor of the proposal in the Senate. "Phone information and call logs should be protected with the same safeguards as financial data or medical records." The issue became big news late last summer following revelations that investigators working for executives at Hewlett-Packard Co. used deception to obtain phone numbers of board members and reporters in an effort to track down news leaks.
And now...
This legislation would pre-empt pending investigations in at least 10 states into whether telecommunications companies violated the privacy rights of their customers by providing sensitive personal information about their telephone calls to the National Security Agency. [...] S. 2389 both preempts stronger state privacy laws and would eliminate the rights of independent state agencies to investigate pretexting and the facilitation of warrantless spying by telecommunications companies.
But don't worry! Because...
Section 2(b)(2) of the bill exempts from privacy protection “lawful” actions by intelligence agencies.
So everything's cool!
However, it does nothing to establish a regime by which the lawfulness of those actions could be tested. And, because those actions are conducted secretly, the effect of this provision is unclear.
D'oh!
Just thought you should know.
Obviously, so long as the "administration" keeps insisting the NSA surveillance and domestic intelligence programs are "lawful," the dispute remains in "he said, she said" mode, despite the fact that the claims to "lawfulness" are based entirely in a doctrine most of America thought was discredited decades ago:
FROST: So what in a sense, you're saying is that there are certain situations, and the Huston Plan or that part of it was one of them, where the president can decide that it's in the best interests of the nation or something, and do something illegal.
NIXON: Well, when the president does it that means that it is not illegal.
FROST: By definition.
NIXON: Exactly....
By the way, just because I can't resist it, let's take a look at where Nixon went after that ellipsis:
NIXON: Exactly. Exactly. If the president, for example, approves something because of the national security, or in this case because of a threat to internal peace and order of significant magnitude, then the president's decision in that instance is one that enables those who carry it out, to carry it out without violating a law. Otherwise they're in an impossible position.
FROST: So, that in other words, really you were saying in that answer, really, between the burglary and murder, again, there's no subtle way to say that there was murder of a dissenter in this country because I don't know any evidence to that effect at all. But, the point is: just the dividing line, is that in fact, the dividing line is the president's judgment?
NIXON: Yes, and the dividing line and, just so that one does not get the impression, that a president can run amok in this country and get away with it, we have to have in mind that a president has to come up before the electorate. We also have to have in mind, that a president has to get appropriations from the Congress. We have to have in mind, for example, that as far as the CIA's covert operations are concerned, as far as the FBI's covert operations are concerned, through the years, they have been disclosed on a very, very limited basis to trusted members of Congress. I don't know whether it can be done today or not.
Recognize any of the thinking there? And I don't just mean the stuff that's coming from the Bush gang. I mean the residual stump of the checks and balances system that Nixon suggests are all that's legitimately left to Congress by way of controlling an executive who believes in this doctrine. That is, you have one, single "accountability moment" -- a presidential reelection campaign -- and after that, the "power of the purse."
It's not their guys telling us that those are our options any more.
It's our guys.
Talk about your Overton windows.
Of course, while the "power of the purse" is constitutional, its manifestation is statutory. And an executive who believes that these extraordinary powers -- "inherent powers," if you will -- are derived from the Constitution, would have no difficulty in claiming the right to trump the prohibitions of Congressional appropriations bills, since they're mere statutes.
We may be about to learn that lesson the hard way.
Really want to freak out? Read the exciting conclusion of the interview for yourself.
[CORRECTION:] Here's the scoop: John Aravosis of Americablog points out that the Post story is, perhaps, a bit too easy to misread, though there's now no doubt that's just what I did. Dig:The American Civil Liberties Union said the proposed bill would pre-empt its legal challenges in at least 10 states to the government's use of private telephone records in its anti-terrorism investigations.Ah, but which bill is "the proposed bill?"
The Senate Judiciary Committee and the Senate Commerce Committee passed different versions of a pretexting bill and were unable to reach a compromise. The Senate Commerce bill contained language that would have pre-empted state laws on pretexting. That drew objections from consumer groups, who worried state laws that were tougher on pretexters would be invalidated.What happened here is that the House passed a bill without state law preemption, the Senate Commerce Committee passed one with preemption, and the Senate Judiciary Committee passed one identical to the House, that is, without preemption. Then, the full Senate passed neither one, instead adopting the House bill. Without preemption. Lesson (besides "learn to read"): Learn and carefully observe the byzantine workings of Congressional procedure, especially as Democrats take over in the majority! So it appears the ACLU's litigation is preserved. Thanks for the tip, John! And it's a good thing those suits are preserved. Because the bill takes care to preserve this exception:
(g) Nonapplicability to Law Enforcement Agencies- This section does not prohibit any lawfully authorized investigative, protective, or intelligence activity of a law enforcement agency of the United States, a State, or political subdivision of a State, or of an intelligence agency of the United States.Now, that's no radical change to the state of the law. "Lawfully authorized" law enforcement activity has always had access to this sort of information. The state suits will set about the task of determining whether or not the NSA's use of the information is, in fact, "lawfully authorized." Which is to say that they will meet the "state secrets" privilege head on, and quite possibly land us right back at square one. But at least we'll all get to see it happen.
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