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<nettime> The Lawless Surveillance State

[Basically, the proposed legislation (FISA) will grant immunity to telcos 
breaking the law while assisting government surveillance.]

The latest revelations of illegal domestic spying highlight what has become 
increasingly clear about the nature of our government.

Glenn Greenwald

Dec. 16, 2007 |

There are several vital points raised by the new revelations in The New 
York Times that "the N.S.A.'s reliance on telecommunications companies is 
broader and deeper than ever before" and includes both pre-9/11 efforts to 
tap without warrants into the nation's domestic communications network as 
well as the collection of vast telephone records of American citizens in 
the name of the War on Drugs. The Executive Branch and the largest 
telecommunications companies work in virtually complete secrecy -- with no 
oversight and no notion of legal limits -- to spy on Americans, on our own 
soil, at will.

More than anything else, what these revelations highlight -- yet again -- 
is that the U.S. has become precisely the kind of surveillance state that 
we were always told was the hallmark of tyrannical societies, with 
literally no limits on the government's ability or willingness to spy on 
its own citizens and to maintain vast dossiers on those activities. The 
vast bulk of those on whom the Government spies have never been accused, 
let alone convicted, of having done anything wrong. One can dismiss those 
observations as hyperbole if one likes -- people want to believe that 
their own government is basically benevolent and "tyranny" is something 
that happens somewhere else -- but publicly available facts simply compel 
the conclusion that, by definition, we live in a lawless surveillance 
state, and most of our political officials are indifferent to, if not 
supportive of, that development.

That's precisely why our political class is about to bestow amnesty on 
telecoms which broke multiple laws in how they enabled the government to 
spy on us, even though what the telecoms did -- on purpose and for 
years -- is unquestionably illegal. Our political leaders in both parties 
plainly want this limitless surveillance to continue, and they don't think 
that telecoms do anything wrong even when they work with the government in 
spying on Americans in ways that are against the law.

And they're saying that explicitly. The legislation jointly created and 
about to be enacted by Jay Rockefeller, Dick Cheney, Congressional 
Republicans and Harry Reid -- with a vital assist from the 
Jane-Harman-led "Blue Dogs" in the House -- is all designed to conceal and 
protect this state of affairs and to enable it to grow.

In mid-October, numerous documents were made publicly available in the 
strange criminal prosecution of former Qwest CEO Joseph Nacchio, who 
refused to comply with several government requests to enable warrantless 
spying, after which he was prosecuted. Those documents detailed the 
unbelievably extensive and secret cooperation between the federal 
government and large telecoms in creating domestic spying programs. After 
reviewing those documents in full, this is what I wrote:

    The cooperation between the various military/intelligence branches of 
the Federal Government -- particularly the Pentagon and the NSA -- and the 
private telecommunications corporations is extraordinary and endless. They 
really are, in every respect, virtually indistinguishable. The Federal 
Government has its hands dug deeply into the entire ostensibly "private" 
telecommunications infrastructure and, in return, the nation's telecoms 
are recipients of enormous amounts of revenues by virtue of turning 
themselves into branches of the Federal Government.

    There simply is no separation between these corporations and the 
military and intelligence agencies of the Federal Government. They meet 
and plan and agree so frequently, and at such high levels, that they 
practically form a consortium.

There are literally no limits on the ways in which the Federal Government, 
working hand-in-hand with the largest private corporations, spies on 
American citizens and maintains files on what we do, where we go, with 
whom we communicate. These secret, unchecked spying programs reach into 
virtually every realm.

And Mike McConnell's mission in life before becoming Bush's DNI was to 
forge this relationship between his private sector comrades and the 
federal government, essentially to privatize our nation's domestic spying 
programs by creating this corporate-government consortium. And that's 
precisely the same mission he has now as he crusades manipulatively in the 
name of "national security" for full-scale amnesty for the same telecoms 
on whose behalf he worked, even when they deliberately break our laws in 
how they spy on us.

* * * * *

This morning's Times article repeatedly passes on the claim that telecom 
amnesty is necessary to preserve what it calls "the federal government's 
extensive but uneasy partnership with industry to conduct a wide range of 
secret surveillance operations in fighting terrorism and crime." It quotes 
a pro-amnesty telecom executive (to whom The Times outrageously provides 
anonymity) as claiming: "It's a very frayed and strained relationship 
right now, and that's not a good thing for the country in terms of keeping 
all of us safe." It quotes Michael Mukasey -- who, in just a couple of 
weeks, has magically become a leading expert on spying issues sufficient 
to lend his Sterling Independence and Integrity to parrot the 
administration's line -- as "saying private companies would be reluctant 
to provide their 'full-hearted help' if they were not given legal 

But this "argument" illustrates the core corruption of the telecom amnesty 
effort. The telecom industry reaps untold profit as a result of its vast 
and expanding government contracts. While they -- like everyone else in 
the world -- would prefer to be immune from consequences when they break 
the law, the idea that they are going to terminate this relationship if 
they do not receive amnesty is insultingly false on its face. These are 
just the same toxic scare tactics that our government and Congress use 
continuously to justify every decision they make, every expansion of power 
they seize: "if you don't allow us to do what we want, you will be 
slaughtered by the Terrorists or your kids will be destroyed by Drug 
Lords." It's rank, transparent fear-mongering with no end and with very 
little opposition among our political class.

But more significantly still, there is a very clear and easy way for 
telecoms to avoid lawsuits in the absence of amnesty: do not break the 
law. As the surveillance state becomes more invasive and sprawling, it 
becomes more vital -- not less so -- that we insist on compliance with the 
laws which we democratically enact in order to regulate this spying and 
prevent abuse. It's precisely because this spying ring is now so vast that 
it is incomparably important to demand that our oversight laws are obeyed 
and to incentivize telcoms and government officials to comply with those 

The argument which Cheney and Rockefeller and Mukasey and telecom lobbyists 
and their servant-pundits in the establishment press are making to justify 
telecom amnesty is Orwellian and deceitful to its core. They're now 
stating outright that we need to provide amnesty when telecoms break the 
law, otherwise they won't continue to do so in the future -- as though 
that's a bad thing. But that's not a bad thing. It's vital that telecoms 
know that they cannot break our laws with impunity. Without that, we have 
no safeguards of any kind against how we are spied on and how those spying 
powers are abused. And if our largest private corporations with the most 
expensive lobbyists are free to break our laws, then we literally -- not 
rhetorically, but literally -- cease to be a country that lives under the 
rule of law.

* * * * *

Yet look at the array of interests unanimously and obediently aligned in 
favor of this profoundly corrupt amnesty proposal. The leaders of both 
parties -- including, especially, those on the Senate Intelligence 
Committees whose core function is to "assure that [intelligence] 
activities are in conformity with the Constitution and laws of the United 
States" -- are working to conceal and reward this lawbreaking. To the 
extent they're even aware of any of this, our media stars almost 
unanimously propagandize for protecting telecom lawbreaking. And most 
strikingly of all, the political movement that spent decades telling 
Americans that they stood for limited government and the rule of law and 
against federal incursions into our lives -- the right-wing "conservative" 
movement -- has boisterously cheered on every one of these lawless 
expansions of the surveillance state, all because, for now, they are at 
its helm.

All of this -- the complete suppression of any investigation or 
accountability for this lawbreaking and the ongoing strengthening of this 
lawless surveillance state -- is about to happen with Democrats nominally 
in "control" of both houses of Congress, none of the presidential 
candidates (other than Chris Dodd and Ron Paul) demonstrating the 
slightest concern over any of it, and all as a result of telecom 
lobbyists -- led by Mike McConnell -- controlling how our government 
functions, what laws we have, and most amazingly, what laws we allow 
corporations to break with impunity. It's the same process that led our 
political class to decide astoundingly that it would do nothing upon 
learning that the President also broke the law for years in how he ordered 
spying on American citizens. The Washington Post's Congressional reporter 
Jonathan Weisman recognized on Friday the indispensable role the Senate 
Majority Leader is playing in all of this:

    San Francisco: Why is Harry Reid ignoring the Judiciary Committee's 
FISA bill and bringing up the SSCI bill? Is telecom amnesty that important 
to Sen. Reid? If so, why?

    Jonathan Weisman: A very good question. Reid has said he will bring up 
the Intel Committee bill, then allow advocates of the Judiciary Committee 
bill to bring up theirs as a substitute. That's a big blow, since it will 
take 60 votes even to consider a vote on the Judiciary version.

    Reid says he opposes retroactive immunity for the telecommunications 
companies, but he seems to be stacking the decks for it.

As Dan Froomkin observed this week: "Historians looking back on the Bush 
presidency may well wonder if Congress actually existed." In actuality, 
Congress exists -- as a vital enabling arm of the most extreme abuses of 
the Bush administration. Could anyone wishing to dispute that depressing 
fact muster any evidence at all in service of their argument? I don't 
believe so.

* * * * *

Ultimately, what is most significant about all of this is how the most 
consequential steps our government takes -- such as endless expansion of 
its domestic spying programs with literally no oversight and constraints 
of law -- occur with virtually no public debate or awareness. By contrast, 
the pettiest of matters -- every sneeze of a campaign aide and every 
trite, catty gossip item from our moronic travelling press corps -- 
receives endless, mindless herd-like attention.

The very nature of our country and our government fundamentally transforms 
step by step, with little opposition. We all were inculcated with the 
notion that what distinguished our free country from those horrendous 
authoritarian tyrannies, both right and left, of the Soviet bloc, Latin 
America and the Middle East were things like executive detentions, 
torture, secret prisons, spying on their own citizens, unprovoked 
invasions of sovereign countries, and exemptions from the law for the most 
powerful -- precisely the abuses which increasingly characterize our 
government and shape our political values. As but the latest example, read 
Mark Benjamin's superb though now-numbingly-familiar account of how we 
tortured Mohamed Farag Ahmad Bashmilah for 19 months and then just let him 
go once we realized that -- like so many others we've detained and 
tortured -- he was guilty of nothing.

This doesn't mean there is a complete erosion of freedom equal to all of 
those societies. Free speech still basically thrives; we elect our 
leaders; and individuals retain a fair amount of autonomy in their 
personal choices. But it is simply undeniable that many of the political 
attributes that were always used to define the oppressive societies 
against which we were supposedly fighting are now explicitly vested in our 
own government. By itself, the scope and breadth of domestic spying is 
just staggering, and much of it is illegal.

No speculation or inferences or rhetorical flourishes are necessary to 
reach these conclusions. Just go read what has been disclosed about what 
our government is doing in the dark, with no oversight and in violation of 
our laws -- and the ways in which our political and media class work 
feverishly to defend and enable it all -- and there really is no other 
conclusion which a rational person can reach. In a country that lived 
under minimal notions of the rule of law, the very idea of having Congress 
pass a special law to immunize retroactively an entire industry which 
illegally spied on us, on our own soil, for years would be inconceivable. 
Yet even in the face of these latest revelations of just how broad and 
brazen this lawbreaking is, that is, in the absence of unexpected 
developments, quite likely what is about to happen.

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