Infrequently Noted

Alex Russell on browsers, standards, and the process of progress.


I don't write much about politics here, but the amnesty-for-telcos language which is being fought by the EFF really has my goat. The whole robo-fax-as-advocacy thing isn't really my style so what follows is the letter I sent to Senator Feinstein today after finding that her San Francisco office's voicemail box is full and that her Washington office isn't staffed on Saturdays either.

Senator Feinstein:

My name is Alex Russell, I'm a software engineer and a constituent of yours in the San Francisco district. I vote in every single election, federal, state, and local. I'm not "politically active" per sae, I don't consider myself a partisan for any party nor do I ever vote a straight party ticket. I just want to see deliberative government which considers the needs of voters seriously. I try to stay on top of issues, study seriously for elections, and come to reasoned positions about the matters before me as a citizen. It's strange then that this may be only the second time I've ever written my senator (previously I believe I wrote my senator in Indiana before I was of voting age...with predictable results).

The reason I'm writing is my incredulousness at your apparent support of the proposed language granting telco's immunity from prosecution for illegal acts taken on behalf of the executive branch (S. 2248, FISA Amendments Act of 2007). You take many policy stands which I disagree with, but this is beyond the pale. The current administration has run roughshod over the mutual respect necessary for our co-equal branches of government to function effectively on behalf of the people. I hardly need to cite examples of executive over-reach. They are before you and the committees on which you serve in the form of testimony nearly every week.

It is troubling then that your position on warrant-less wiretapping should be so blasé, so deferential in the face of a seemingly explicit policy from the executive which asserts that it is immune from oversight. The existing FISA statutes (before this years revisions) provide broad leeway to the executive and little scrutiny. This default policy of the FISA court in favor of lessened oversight then, in my opinion, casts it as the limit...the furthest down the path of creating a surveillance society that a democracy which is beholden to the rule of law can tolerate. What is being proposed in S. 2248 is something entirely different in character.

It is anathema to the concept of equality of the judiciary with the legislative and executive branches to suggest that when the legislative branch entices firms to act illegally on its behalf, shrouded by secrecy, that the people have no right to redress their wrongs through the judiciary when the legislative branch is too cowed or blind to hold the executive to account. This is exactly what is being proposed. It is one thing for Democrats in congress to fail to act with regards to what is plainly illegal behavior by the executive. I understand and appreciate the concerns and constraints which lead you and your colleagues to ignore the will of the people in the short term. But I cannot fathom a strong case for stripping the judiciary of its oversight role as well. Please, I implore you, do not cave to this.

I fully agree with those who suggest that it may be sub-optimal for the proxies of the administration to take a fall for the administration's illegal acts, but I do not see where the case of civil society and the rule of law can turn when redress through the courts is removed as the backstop on the slippery slope of executive power. The fourth estate has already failed us here and congress has been unwilling to strongly challenge this illegal behavior. If the congress is to have a hope of addressing this behavior on a legislative basis in the future, someone needs to be able to shine sunlight into the illegal activities of the administration. If congress is unwilling to take it up, then at least allow the courts their right.

Please, Senator Feinstein, denounce, work against, and vote against the proposed language which grants amnesty to secrecy, thereby giving anyone who can wield the language of security and the privilege of secrecy the force of law to do as they will.