I need to stop editing this and post it before it becomes out of date again.
Finally, after seven years, it appears that some of the democrats may have grown a spine. Congress has been fighting over surveillance bills concerning wiretapping and the Foreign Intelligence Surveillance court. Although everyone in Congress unfortunately seems to think that warrantless wiretaps are a good idea, the main battle is currently over whether the telephone companies should be granted retroactive immunity for allowing such warrantless wiretaps back when it was illegal according to Federal law. You may recall that the Protect America Act of 2007 allowed the government to wiretap phones without court oversight, but it was set to expire in February 2008. Congress recently spent a lot of effort trying to renew it, but the retroactive immunity has become a sticking point. Bush and his cronies say that without it, the telecoms will be afraid to help the government with this stuff in the future (never mind the fact that if they just got the FISA court to review it, it’s very easy to get a warrant and then the telecoms are happy to comply). Consequently, the Senate passed a version of the bill that granted retroactive immunity to the telecoms (note that Obama voted against the immunity, while McCain voted for it and Clinton didn’t bother to show up; all three have claimed they were against such things when asked about it in the past). The House of Representatives, however, passed a copy of the bill that did not grant immunity. The two bills went to reconciliation (where they’re merged into one law that goes back to both groups again), and the version decided upon included the immunity. However, again the House did not pass the bill. In response, Republicans staged a walk-out in protest. Consequently, no bill was sent to Bush to be signed, and the PAA expired! We’re back to the (mostly sane) wiretapping rules described under the Foreign Intelligence Surveillance Act of 1978. I earnestly, desperately hope that the Democrats continue to hold strong, and I have written to my Representative to say this (he wrote back with a canned response about how he intends to fight this, but that doesn’t actually mean he’ll carry through). We’ll see.
In the meantime, bastions of freedom and privacy such as the Electronic Frontier Foundation continue to fight against the telephone companies that violated Federal law and our privacy. Sadly, the Supreme Court threw out the ACLU’s case with absolutely no comment about why they did that (a lower court had ruled that they can’t prove they were the victem of the warrantless wiretaps, because the evidence that shows they were was deemed to be a state secret and consequently thrown out of the case). However, I believe the EFF cases are still going through the legal process. This is a tough thing for the Supreme Court to tackle: if they rule in favor of the wiretaps, they significantly weaken the fourth amendment (see Berger v. New York, 1967). However, if the court makes warrantless wiretapping illegal, all hell breaks loose because the Bush administration has been conducting an unconstitutional program for years (and all hell breaking loose is not conducive to orderly government).
We’ll see what happens. If the past few years are any prediction, the Democrats are just going to roll over and grant the retroactive immunity, but I really, really hope this won’t transpire.