Monday, November 12, 2007

Law and Order

In election campaigns, all candidates are in favor of law and order. It is therefore particularly striking to observe an elected politician--the President of the United States--publicly committing himself to veto a bill if its terms do not include a mass pardon releasing from civil liability firms that deliberately violated the law on a massive scale over a period of years.

The lawbreakers are telecom firms which apparently violated existing law by assisting the government in intercepting communications--by some accounts enormous volumes of communications, mostly from one American citizen to another--which they had no legal right to intercept.

Of course, the firms were not the only lawbreakers. The Foreign Intelligence Surveillance Act regulated interception of communications between people outside and people inside the U.S., requiring them to have permission from the FISA court. It seems clear from what we now know that that requirement was also violated on a massive scale, by the National Security Agency acting on instructions from the Administration. Under FISA each such interception is a felony, carrying a penalty of up to ten years in jail. So is the knowing use of information obtained by such an interception--meaning that the President himself is, by his own statement of the facts, although not by the administration's view of the law, a confessed felon.

Oddly enough, while the Administration is insisting that the telecoms be let off from civil liability for breaking the law at its request, it has not, so far as I can tell by the news stories, requested immunity from criminal liability--for itself or the hundreds or thousands of its employees who, under (I think) any plausible reading of the law, are felons.

I discussed what I believe to be the reason some time back in the same context. Criminal law is controlled by governments--you can only (in the US) be prosecuted for a crime if a government prosecutor chooses to prosecute you. Hence the government itself is effectively immune from criminal law if it wants to be, subject only to the risk that some future change of government might result in prosecution for past crimes or that one government--say a state--might prosecute the agent of another. Civil law, while its cases are decided in government courts, is privately prosecuted; a private party, such as the Electronic Frontier Foundation, can prosecute a civil suit against the telecoms whether or not the government approves. Hence the need for special legislation to retroactively alter the law in favor of the lawbreakers.


At 5:52 AM, November 12, 2007, Blogger Mike Huben said...

I've always wondered if Congress could use it's powers to sentence for "inherent contempt", and take uncooperative witnesses and hold them. (It is limited to the session, apparently.) I would like to have seen AG Gonzales held and waterboarded by Congress until he testified that it was illegal torture.

But these are just revenge fantasies. Legislation and civil litigation will suffice to end these practices in the next few years.

The real question is how Bush will use his unlimited power of pardon at the end of his term to protect his loyalists from criminal and civil prosecution.

At 6:57 AM, November 12, 2007, Blogger Kenny said...

There's really no such thing as anonymity. And, to quote Mr. Kerr, "Anyone that's typed in their name on Google understands that." That is, unless you're willing to move to Montana or Alaska or basically just live in a cave and have no contact with other humans. So, I have no disillusion that my life is private. I also don't mind if people know who I am or where I live and work. Granted, I don't like the idea of someone obtaining my financial information or something like that.

However, I do have a problem with the government listening in on my phone conversations or reading my emails "just in case" I'm up to no good. Or, storing that for future reference in case I do commit a crime later.

And, I don't agree that the government should be able to retroactively change laws in order to protect itself. I admit that I don't know a lot about politics and the government, but I remember learning that there are checks and balances to insure the government cannot do that.

At 9:19 AM, November 12, 2007, Blogger jimbino said...

Well, just wave goodbye to the sentiment against ex postfactum laws.

As far as privacy is concerned, I wonder why we (and especially any terrorists among us) wouldn't be well advised to change our names to John Smith or Bob Johnson so as to overwhelm any google search and attempted privacy invasions at all the world's airports?

At 10:11 AM, November 12, 2007, Blogger David Friedman said...

Mike writes:

"Legislation and civil litigation will suffice to end these practices in the next few years."

And I thought I was an optimist. Let's first see what gets through the current congress, where the Democrats have a majority. At the moment, it appears to be expanding the power of government in these areas, not contracting it.

At 8:11 PM, December 11, 2007, Anonymous Johan Larson said...

"you can only (in the US) be prosecuted for a crime if a government prosecutor chooses to prosecute you. "

You might want to check that. I think private prosecution is still possible in some US jurisdictions.



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