The government can be sued for warrantless wiretapping. The telecom companies can't.

LA Times:

Residential telephone customers can sue the government for allegedly eavesdropping on their private communications in a warrantless "dragnet of ordinary Americans," a federal appeals court ruled Thursday.

The three-judge panel of the U.S. 9th Circuit Court of Appeals, however, upheld dismissal of other cases that sought to hold the telecommunications companies liable, citing Congress' decision to grant them retroactive immunity.

I'm kinda-sorta OK with this outcome. The telecom companies facilitated the eavesdropping at the government's behest; targeting the companies for their participation was always a way of trying to hold somebody accountable for the government's illegal actions. I'm no fan of big corporations, but if the government that has regulatory power over you prompts you to do something illegal in the name of preventing terrorist attacks—well, I imagine that prompt would be pretty difficult to ignore. The government's responsible here; let's hold the government accountable.

That said, remember: Then-Senator Obama voted to give the telecoms immunity. It was an early indication that maybe he wasn't quite as committed to the civil liberties cause as we hoped.

The Tragedy of Ernest C. Withers

Earnest C. Withers, a black man who photographed so many key moments of the Civil Rights Movement, was apparently a paid informant of the FBI during the 1960s -- keeping the government apprised of the movements and plans of Martin Luther King Jr. and his allies who fought for equal rights.

Civil rights leaders have responded to the revelation with a mixture of dismay, sadness and disbelief. “If this is true, then Ernie abused our friendship,” said the Rev. James M. Lawson Jr., a retired minister who organized civil rights rallies throughout the South in the 1960s.

Others were more forgiving. “It’s not surprising,” said Andrew Young, a civil rights organizer who later became mayor of Atlanta. “We knew that everything we did was bugged, although we didn’t suspect Withers individually.”

The children of Mr. Withers did not respond to requests for comment. But one daughter, Rosalind Withers, told local news organizations that she did not find the report conclusive.

“This is the first time I’ve heard of this in my life,” Ms. Withers told The Commercial Appeal. “My father’s not here to defend himself. That is a very, very strong, strong accusation.”

Mr. Withers is dead, so we can't possibly know his motivations for informing to the FBI.

But I was reminded of the great movie "The Lives of Others," about East Germany's extensive domestic spying program during the Cold War. As that movie -- and ample documentation from that era show -- a surveillance state is a leviathan that does much more than simply "surveil." It reaches into the lives of the people it observes, and the people around them, seeking control through manipulation, fear and the ever-present reminder that you are being watched. We think of ourselves in the West as being more free and more enlightened than East German stooges -- and, mostly, we have been -- but there have been times, such as when J. Edgar Hoover ran the FBI, that it has been a fairly close call.

We should thus mourn the tragedy of Ernest C. Withers, then: a man, maybe a man who could've been great, apparently compromised by forces much bigger than he.

And we should be concerned, too, that some 40 years from now we'll be finding out similar, horrifying revelations, about our friends and neighbors and government. The surveillance state always claims to be acting in the interest of our safety and security. Sometimes, it's even true.

I still don't believe the Tea Party: Eavesdropping edition

I've long believed the Tea Party phenomenon is mostly about sore loserdom -- the people who've been taking to the streets and raising hell at Congressional town meetings these last 18 months say they're alarmed at deficits and runaway government spending. But they were nowhere to be found while those same things were getting started under George W. Bush.

The complaints of Tea Parties have, generally, fallen under the rubric of "tyranny." The Obama Administration is infringing on our freedoms, it is said, to a degree unimaginable outside of historically extreme circumstances. But really, I don't believe the Tea Partiers on this front, either. Why? Well, let's look at today's Washington Post:

The Obama administration is seeking to make it easier for the FBI to compel companies to turn over records of an individual's Internet activity without a court order if agents deem the information relevant to a terrorism or intelligence investigation.

Critics say its effect would be to greatly expand the amount and type of personal data the government can obtain without a court order. "You're bringing a big category of data -- records reflecting who someone is communicating with in the digital world, Web browsing history and potentially location information -- outside of judicial review," said Michael Sussmann, a Justice Department lawyer under President Bill Clinton who now represents Internet and other firms.

I get -- even if I don't agree -- why Hayek-loving Tea Party folks think, say, slightly higher tax rates are a harbinger of a coming Orwellian world. What I don't get is their silence on the ability of government to reach into your private communications with fewer and fewer restrictions. (Read this for even more scariness.)

It could be that we'll suddenly see a spate of Tea Party criticism on this front -- but again, it'll be coming from people who were silent on this same subject during the Bush years. If they speak up now, they're hypocrites. And if they don't speak up now, well, they're hypocrites. Or maybe just extremely misguided: tyranny is not limited to merely economic matters, but our Tea Party friends don't seem to know that.

The shame of it is, if Tea Partiers accused the Obama Administration of enabling tyranny in this matter, I'd agree with them. As Kevin Drum posted: You know, if I'd wanted Dick Cheney as president I would have just voted for him."

In any case, it all boils down to this: I still don't believe the Tea Party.

UPDATE: Glenn Greenwald points out an ACLU report showing the Obama Administration is preserving the Bush Administration's worst civil liberties abuses. (Sigh.) Is Ralph Nader running in 2012?

At The Corner, Shannen Coffin smears the New York Times

Over at The Corner, Shannen Coffin -- Dick Cheney's lawyer during the Bush Presidency -- goes after the New York Times for its apparent hand-wringing over the "unauthorized disclosure" of the so-called "Climategate" e-mails. The post is called "Propriety in Newsgathering" and it deserves to be fisked a little bit.

Let's start at the beginning:

Since at least the Pentagon Papers case (and surely before even then), the New York Times has made many a nickel on unauthorized leaks of sensitive national security information.

It's true the New York Times is a for-profit concern, but I think it's unseemly to suggest the Times tries to profit from -- as Coffin is going to get around to implying -- killing American soldiers. Most newspapers operate with two missions: A) to turn a profit and B) to serve the public. At their best, for-profit media has offered defenders of capitalism a success story: Doing well by doing good. Sometimes, "doing good" means publishing information that's of public interest -- even if the government wants it hidden. Which leads us to the next bit...

The biggest, though certainly not the only, whopper during the Bush administration was its exposure of the Terrorist Surveillance Program — the NSA wiretapping program targeted at al-Qaeda. With as much self-righteousness as he could muster, executive editor Bill Keller at the time explained that the paper published the leaked information because “we were convinced there was no good reason not to publish it.”

So the “unauthorized disclosure” of classified or sensitive information is not something that the Times generally loses sleep about.

In fact, the Times lost about a year of sleep over the warrantless wiretapping story. That's how long the paper declined to publish the piece ... because of national security concerns raised by the Bush Administration. In fact, that information was a critical part of the original story:

The White House asked The New York Times not to publish this article, arguing that it could jeopardize continuing investigations and alert would-be terrorists that they might be under scrutiny. After meeting with senior administration officials to hear their concerns, the newspaper delayed publication for a year to conduct additional reporting. Some information that administration officials argued could be useful to terrorists has been omitted.

So why did the Times proceed with the story? Because its reporting revealed there were substantial concerns within the Bush Administration about whether the program was legal. Eric Lichtblau, one of the reporters, later recounted:

Jim and I had already learned about much of the internal angst within the administration over the legality of the NSA program at the outset of our reporting, more than a year earlier in the fall of 2004. Still, the editors were not persuaded we had enough for a story—not enough, at least, to outweigh the White House's strenuous arguments that running the piece would cripple a vital and perfectly legal national-security program. It was a difficult decision for everyone.

Risen's book was a trigger, but we realized we weren't in the paper yet. We still had to persuade the editors that the reasons to run the story clearly outweighed the reasons to keep it secret. We went back to old sources and tried new ones. Our reporting brought into sharper focus what had already started to become clear a year earlier: The concerns about the program—in both its legal underpinnings and its operations—reached the highest levels of the Bush administration. There were deep concerns within the administration that the president had authorized what amounted to an illegal usurpation of power. The image of a united front we'd been presented a year earlier in meetings with the administration—with unflinching support for the program and its legality—was largely a façade. The administration, it seemed clear to me, had lied to us.

The Times, it seems to me, did exactly what you'd hope a newspaper would do in a free society: It weighed arguments about the program's warfighting utility against the possibility that the program was illegally usurping Americans' civil liberties. It held the story a year out of an abundance of caution. But it did publish the story, eventually, when concerns about the program's legality couldn't be resolved behind closed doors. A lot of people were angry at the Times for holding the story so long.

Anyway, back to Coffin:

Indeed, an editorial in September 2009 trumpeted the fact that “the abuse of prisoners at Abu Ghraib, the secret CIA prisons in Eastern Europe for terrorists and warrantless wiretapping all came to light through the unauthorized disclosure of classified information.”

Yup. And I say: Hooray for leakers!

Coffin -- like James Taranto at the Wall Street Journal -- then goes on to decry the Times' apparent "anguish" about the "unauthorized" nature of the Climategate e-mail release. (Personally, I think Coffin and Taranto are very much overreading the Times' apparent anguish here, but whatever.) And that leads to Coffin's coup de grace:

Perhaps the Times is turning a corner, and we can expect similar concerns to be raised whenever they root out classified government information that may — oh, I don’t know — result in the loss of American lives.

Here's my challenge to Shannen Coffin (not that he'll ever read this, but still):

Show me the bodies of Americans who lost their lives because of the warrantless wiretapping story. I don't think they exist, frankly, because if they did former Bush Administration officials and their allies would've been parading them around for years in order to get news organizations like the Times on the defensive. So Coffin's invocation of (hypothetical) American deaths is, well, a cynically questionable assertion in the service of letting the government commit legally questionable acts.

I admire conservatism when it urges limits on government in the name of individual freedom. What Coffin's advocating here is somewhat the opposite.

On government eavesdropping: Just because you can't find the body doesn't mean there wasn't a murder

Over at No Left Turns, Justin Paulette drops a bomb in the middle of a complaint about Great Britain:

I've previously mentioned several of his examples on NLT, but Mark Steyn sums up the absurd charade of "rights"-based oppression prevailing in Great Britain. It's shamefully ironic that George Bush was consistently denounced for rights-depleting policies by which (as in the "domestic spying program") not a single American can be located who was in any manner harmed in the slightest - yet Democrats merrily seek to silence conservative talk-radio and liberals would arrest pro-life prayer groups as organized crime syndicates without the slightest sense of contradiction or hypocrisy.

I think the last bit of Paulette's claim here is either overstated or outright wrongheaded, but let's leave that alone for his second. I'm struck by his claim that we can't find a "single American" who was harmed by the domestic spying program.

Well of course we can't. We're not allowed to know who was spied upon! And thus we don't know who might've been harmed. Here's the ACLU's summary of the dismissal of its lawsuit against the program:

In July 2007, the Sixth Circuit Court of Appeals dismissed the case, ruling the plaintiffs in the case - which includes scholars, journalists, and national nonprofit organizations - had no standing to sue because they could not state with certainty that they have been wiretapped by the NSA.

The decision "insulates the Bush administration's warrantless surveillance activities from judicial review and deprives Americans of any ability to challenge the illegal surveillance of their telephone calls and e-mails," said ACLU Legal Director Steve Shapiro. He added the ruling "did not uphold the legality of the government's warrantless surveillance activity. Indeed, the only judge to discuss the merits clearly and unequivocally declared that the warrantless surveillance was unlawful."

Because the appeals court refused to rule on the legality of the program, Americans were denied the chance to contest the warrantless surveillance of their telephone calls and e-mails.

When a group came forward with proof it had been surveilled -- the evidence was accidentally given to them by government lawyers -- the government tried to invoke the State Secrets Act. If there was harm (both the Bush and Obama administrations argued) too bad: It couldn't be talked about in court. It would just have to be swept under the rug.

I don't mind if Justin Paulette is concerned about political correctness swamping the rights to free speech; I even share some of his concerns. But his point is undermined by invoking an example where the absence of evidence a "single American" who was harmed by a government spying program might, in fact, be evidence of the government's overreach.