Glen Greenwald, writing in the ACLU blog today, says the Fat Lady has yet to sing in the matter of the FISA Amendments Act of 2008.
How many times does the fourth amendment come up in a generic cafeteria discussion of FISA? Not at all. Too esoteric. It doesn’t pass the New York taxi driver test, in other words, you can’t explain it to a cab driver in a few sound bites. Try it. But retroactive telecom immunity definitely strikes a nerve. You can talk about eavesdropping and companies that are breaking the law, and everybody gets upset about that one and puts in their two cents worth. And it’s the retroactive immunity Greenwald discusses here. He finds retroactive immunity unconstitutional because
1) Congress does not have jurisdiction to determine whether the telecom companies operated “in good faith” when they wiretapped without a warrant. Only the courts can determine that.
2) The right to sue telecoms is property. Taking away the right to sue deprives citizens of property without due process. The fifth amendment allows this only with just compensation. An example of this is when Congress created the 9/11 Victims Compensation Fund in lieu of being able to sue in court.
I have no doubt that eventually habeas corpus will mean something again in this country and that the Constitution will be honored again. Hopefully in my lifetime. We have been through the McCarthy era and the Civil War before that, and the pendulum always swings back after ten years or so. But it doesn’t swing back until the security threat is over. In the meantime, people like Greenwald keep the torch from going out.