If the government becomes a law breaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means 'to declare that the government may commit crimes in order to secure the conviction of a private criminal' would bring terrible retribution.

[From dissenting opinion in Olmstead vs. United States, in which the court upheld the use of wiretaps in a case involving an investigation of bootlegging. Brandeis strongly defended the individual right to privacy from government intrusion.]

-Louis D. Brandeis, 1928

That's what Congress is poised to do, "to declare that the government may commit crimes in order to secure the conviction of a private criminal" with passage of the FISA Amendments Act. Except, of course, that they haven't even secured any convictions through the warrantless surveillance, at least not that they've made public--and believe me, if they had any convictions to justify the program, we'd have heard about it.

The Congress is about to severely expand the already too-extensive authority of the president in surveilling the citizens of this nation. In doing so, it is ignoring the fact that the government has become a law breaker and made the telcos accessories to the crimes.

Which brings us to the next words of wisdom from Justice Brandeis:

Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman.

-Louis D. Brandeis, quoted in Other People's Money and How the Bankers Use It (What Publicity Can Do, Ch 5, p. 92) (Frederick A. Stokes Co. ed.)

For the nation to regain any trust in government and respect for the rule of law, we have to know what happened. We need to know what the administration was asking Qwest to do in February of 2001, well before 9/11. We need to know who was targeted in the illegal surveillance program, and we need to know why. "National security" is not an adequate excuse. If it were, the administration and so many in Congress would not be fighting so hard for immunity for the telcos. For one thing, the Foreign Intelligence Surveillance Act already protects private parties who get a certification from the government that their actions are lawful. This provision is utterly unnecessary, unless the information about Americans intercepted, stored, and turned over to the government doesn't fall under the provisions set out in the existing FISA statute.

It's hard to believe that Congress could actually be less curious and more secretive than than the Bush/Cheney administration in trying to keep this information from ever seeing the light of day. Can it really be that they're quaking in their shoes that the Republicans will call them names in the fall so they have no choice but to capitulate? Don't they get that they're going to be attacked anyway, and gutting the Constitution isn't going to be a preventive for that. That seems to be a lesson that they are just not catching on to, despite Democratic wins in 2006 and in special elections this year. If it hasn't occurred to Barack Obama, who's made it as far as securing the nomination for presidency, then I have little hope for the rest of the current crew.

However, there's a tiny glimmer of hope in the fact that not all--and in fact a majority--of Democratic representatives in Congress have opposed retroactive amnesty. Because of that opposition, a real compromise has arisen: Sen. Bingaman has one of the three amendments that will be considered on July 8 when the Senate brings this back up. EFF, who along with the ACLU is representing plaintiffs in these wiretapping cases, has endorsed the amendment:

The Bingaman amendment would prevent Congress from granting immunity in the dark, as described in the press yesterday, by "stay[ing] pending cases against the telecoms and delay[ing] the effective date of any immunity provisions until 90 days after Congress received a report from the inspectors general of the intelligence agencies on the warrantless surveillance program". By placing a temporary hold on immunity and on the litigation until 90 days after the IG Report is submitted to Congress, the simple amendment would give Congress and the American people an opportunity to revisit the issue of telco immunity next year, in light of the audit's findings.

The likelihood of an IG investigation or report by the Bush administration is so minimal as to mean that the decision on immunity would have to happen next year, under a new administration and Congress. It's a good idea. The bad part here is that this amendment has to meet a 60 vote threshold to pass. That threshold is going to be as hard to meet as the simple majority the amnesty stripping amendment will have to achieve. But it does hold out the possibility that these crimes will be examined, and that it can happen with a new president, a new Congress. It's the kind of amendment that could garner support from moderate and conservative Dems and those few moderate Republicans who are really hoping to hold onto their jobs this cycle.

Which is, of course, where we come in.

Again, Justice Brandeis:

The most important political office is that of private citizen.

-Louis D. Brandeis

That means us. Our job here is be the citizens that our elected representatives all too often fail to be. That means holding our representatives, and our nominee, to do their damn job of supporting and defending the Constitution.

One option for fulfilling your duty as a private citizen is Ben Masel's Operation Read the Bill. Print a copy of the bill, find your Senators while they are home during this recess--the 4th of July recess, no less--and ask them if they've done their duty of reading the bill. Ask them if they know that they're about to redefine the term "WMD" to possibly include many weapons that the U.S. military uses. Ask them if they know they are about to cede even more of their power--the power of protecting us, their constituents, from unlawful surveillance--to the executive.

When you're done quizzing them on the bill, ask them to support the Feingold/Dodd amendment to strip immunity from the bill and to support the Bingaman amendment. Ask them to do their job.