Point Austin: The Perps Walk

One of the core, almost religious bases of America's strength is this concept that nobody is above the law. Everybody has to follow the rules. ... Anytime we act as if we don't really mean that, we damage our core values. – R. James George Jr.

Austin attorney Jim George was talking about the recent congressional enactment of amendments to the Foreign Intelligence Surveillance Act, amendments that both broaden future federal authority to engage in unwarranted wiretapping of U.S. citizens and retroactively grant civil immunity to the telecom corporations that allegedly cooperated with federal authorities in violating the earlier version of the law. I had called George partly to get his reaction to the FISA amendments, and also to get an update on the FISA-related lawsuit in which he represents the Chronicle and a host of other luminaries (Dicky Grigg, Jim Harrington, the ACLU, and others) against AT&T and the National Security Agency in their apparent cooperation to "data-mine" millions of domestic telephone calls – without legal warrants – in a grandiose attempt to deduce "patterns" that might somehow produce useful intelligence in the – stop me if you've heard this before – "war on terror."

The lawsuit is officially pending before the Ninth Circuit Court, George told me, but now may well have been rendered moot by the congressional FISA action. He's waiting on a final order, hoping perhaps to make the argument that Congress cannot retroactively eliminate a citizen's "property interest" – potential damages owed by a phone company – but he knows it's pretty thin soup, despite the all-but-acknowledged lawbreaking. "There's no question it happened, and there's no question it violated the law, and it's no question that there's a civil penalty of $1,000 per time it happened," George said bluntly. "That is not disputable."

But he seemed frankly less occupied with the details of the lawsuit than what the congressional blessing of official and corporate lawbreaking says about the state of his country. "They simply have decided that breaking the old law is going to be ignored," he said of Congress. "It is as if they have the right to forgive people of sins; they're going to baptize you and forgive all your transgressions."

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Prevailing Winds

Amidst really burning public questions like the inner meaning of The New Yorker cartoons, the expansion of federal wiretapping power might not seem like such a big deal. But the ACLU filed yet another lawsuit following the new FISA enactment, hoping to derail the law on Fourth Amendment grounds. Acting on behalf of a host of plaintiffs who have legitimate, indeed pressing, international connections – Amnesty International, Human Rights Watch, The Nation magazine, defense attorneys, the Service Employees International Union, among others – the ACLU argues that being subject to unwarranted, dragnet "intelligence-gathering" (of phone calls, e-mails, all electronic communications) of foreign subjects will inevitably violate constitutional protections against "unreasonable searches and seizures." Under the new law, investigators need no authority from a court, nor even any demonstration that their targets (or their U.S. contacts) are in any way connected to criminal activity or "terrorism." The suit argues that such practices violate the Fourth Amendment, the First Amendment, and the separation of powers – but since Congress seems uninterested in defending either its own powers or that of the judiciary against an ever-expanding executive branch, the chances of victory are slim.

As George commented dourly, "The Congress can do what it did, if it chooses to do so." He didn't want to dismiss the possibility of the lawsuit succeeding out of hand, but called the odds long. "The ACLU is not crazy, and it is not impossible that it will succeed, but it is unlikely. They're going to have to get a different Department of Justice and they're going to have to get a different Supreme Court to make that happen."

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Double Bookkeeping

On that score, in November 2006 we thought we had a different Congress, but it's hardly working out that way. The Democrats have been falling all over themselves – on the war, on wiretapping, on "terrorism," on all things "national security" – to prove they can be just as knee-jerk tyrannical as the Republicans. Asked why he thinks seemingly fundamental constitutional principles can be so readily ignored by both parties, George responded: "Have you ever looked at the political expenditures of AT&T? – they are generous to a fault to the people on their side. And it is frankly hard for people to stand up and say, 'This is wrong,' when something has been presented as 'fighting terrorism.'"

But again and again, George returned to what this legislation and the prevailing political winds say about the state of the country. He pointed out that retroactive immunity makes a mockery of conservative defenses of the Constitution, and is instead "situational ethics" in the extreme, because it says: "We're going to hold everybody to the law at all times, and that they have to follow the rules – except when we don't want to, except when it's inconvenient. That's not a lesson we ought to be teaching our children, much less the citizens of the United States. ... You can't have this system that depends on whose ox is getting gored!"

Looking back over his 40 years as an attorney, George has been proud to see dramatic changes in making equality before the law increasingly apply to everyone, and he sees that slipping away. "We've provided that the rules apply to everyone, and a lot of blood and sweat and heartache have been spent, that currency has been spent, to get to a point where the rules must apply to everybody. A lot of people didn't follow the rules; black people didn't get the same rules as white people; women didn't get the same rules as men. We've come a long way in those 40 years ... and it just breaks my heart when we start going the other way, and this is a step in the wrong direction."