Rule of law objections against retroactive immunity

Yesterday, the Senate (by a 68-29 margin!) shamefully endorsed retroactive immunity for those telecom companies which helped the government to illegally wiretap domestic calls.

Whether one believes that the government did the right thing (in the moral sense) in wiretapping our calls or the phone companies did the right thing (in the moral sense) to consent is one matter. It is a difficult question, in my opinion, whether such invasions of citizens’ presumption of privacy are justifiable in light of the dangers we face. One route towards a negative answer is to point out, as many have, that FISA’s restrictions on government wiretapping were not stringent (out of nearly 20,000 requests for warrants the FISA courts have rejected only 5). This belies any assertion that emergency conditions and immanent dangers demanded that government act without a warrant. This is not to mention that wiretapping has continued for 5 years now, and probably would have remained a secret had the NY Times, in a rare act of courage, not exposed the program. Be that as it may, my main point here is just to say that an answer to who is right or wrong in such matters requires making substantive judgments of value.

A concern for the rule of law, however, is different. Respect for the rule of law is respect for the procedures the law encodes. Whether or not one believes the government and the telecom companies made a substantive mistake or not, it is a fairly straightforward judgment to say that they violated the rule of law. With the 1978 FISA law in place, Bush unilaterally decided that it didn’t apply to him and thereby directed ATT and Verizon (and who knows what other companies) to spy on their customers. This is a violation of the rule of law plain and simple.

We cannot underestimate the value that rule of law constraints have in a functioning democracy. Arguably, since liberal democracies should be neutral with regards to moral value, the rule of law is the most fundamental political value we have. The contempt with which the Bush administration has treated this value is well known. It serially substitutes its own judgment for laws that previous administrations working with previous congresses have carefully crafted.

With yesterday’s vote, the Senate has now endorsed such lawlessness—and this is a source of deep disappointment for anyone who, perhaps wishfully, believed that this body possesses the institutional wisdom to confront an evisceration of the rule of law. Pitifully, some members of Senate are now praying that the House manages to do what the Senate should have done.

For an eloquent, but evidently ineffective, defense of the rule of law, read Senator Dodd’s (D-CT) statement.