Buggered by bugging regime

George Williams and David Hume (not the philosopher unless UNSW has invented some truly remarkable new technology) have an article in today’s SMH focusing on the Telecommunications (Interception) Amendment Bill about which I posted last week:

Under the Telecommunications (Interception) Amendment Act, the Government will be able to access communications not only between the B-party and the suspect, but also between the B-party and anyone else. If you have unwittingly communicated with a suspect (and thereby become a B-party), the Government may be able to monitor all your conversations with family members, friends, work colleagues, your lawyer and your doctor.

The Government may be able to use the information even though the information is not related to the original suspect. It also does not have to tell you that it has been listening in. While there are some remedies if you have been illegally monitored, these are pointless if you do not know you have come under surveillance.

In the US, citizens are already subject to a remarkably similar regime of secret interception of the communications of people who are not suspected of involvement in terrorism but only of communicating (however innocently) with someone who might be. In the US, however, not only does the President have no statutory authority for this secret bugging regime, but it’s actually directly contrary to federal legislation namely the Foreign Intelligence Surveillance Act (FISA). Predictably, the President’s spin doctors claim that this legislation is unconstitutional! And although most constitutional lawyers regard the Bushies’ legal arguments as very weak, it’s fairly unlikely that they’ll ever be challenged in the courts because that would require a plaintiff who has standing to sue i.e. who is specially affected by the law in question. In most cases, people will have no idea they’re being bugged let alone be able to prove it to the extent necessary to establish standing to sue.

As constitutional lawyer Marty Lederman explains in an excellent post at Jack Balkin’s blog, US Senator Schumer has now introduced a bill that would (if enacted) cure the standing problem:

Most importantly, it would create a statutory cause of action — and thus statutory standing — for certain persons with a “reasonable fear” that their communications are being intercepted, authorizing them to file an action asking a court to enjoin or declare unlawful the NSA program. A reasonable fear would be established by evidence that the plaintiff either has regular wire communications from the U.S. to Afghanistan, Iraq or Pakistan, in the course of paid employment involving research pertaining to terrorism or terrorist groups, or commercial transactions with a bank or financial institution in those countries.

The bill would provide that a three-judge court in the District of Columbia would hear such a suit, and would be required to handle the action with dispatch. Appeal from a final judgment would be directly to the Supreme Court, by way of a jurisdictional statement filed within 30 days after judgment.

Incidentally, I suspect that a plaintiff seeking to challenge Australia’s new “B-party” interception regime would not have these sorts of standing problems. The Tasmanian State Liberal government ran a somewhat similar argument in 1997, seeking to deny standing to a plaintiff in Croome v Tasmania, where the plaintiff was seeking to test the constitutionality of long-standing Tasmanian laws criminalising homosexual activity in the light of new federal legislation that outlawed such breaches of the private sexual freedom of adults. The Tasmanian government argued that Croome had no standing to sue, because he had not been charged under the Tasmanian Criminal Code, but the High Court held that it was enough that he had committed conduct that rendered him theoretically liable to prosection.

Sadly, it seems unlikely that the Schumer bill will ever be enacted. Although politicians in the US system don’t exhibit the sort of rigid party discipline of their Australian counterparts, it’s fairly unlikely that more than a few Republicans would cross the floor, and next to impossible to imagine enough doing so to override an inevitable Presidential veto. Marty Lederman summarises the current situation in the US as a result of Bush’s attitude to FISA and warrantless bugging of non-suspects:

The President is asserting the power to ignore duly enacted statutes whenever they impinge on his judgment about how to best defeat the enemy. Not only that, but he also asserts the right to do so in secret, without meaningful congressional oversight, and without any public knowledge that the laws are being superseded. Indeed, as the Feingold Resolution points out, the Administration has taken great pains over several years to convince the Congress and the public that it is abiding by FISA (just as it publicly insists — with fingers crossed behind its back — that it does not condone torture and complies with all international obligations and statutory restricitons on interrogation). And in response to the President’s assertions of Executive power, not only is the Republican-controlled Congress not asserting any institutional prerogatives (which might be expected in an era in which partisan considerations greatly outweigh institutional loyalties), but even the Democrats are acting as if this is merely another in a series of policy disputes, rather than a more fundamental, structural challenge to the balance of powers.

Make no mistake, however: The Vice President and others in the Executive branch are very serious about the long-term strategy of Executive aggrandizement — and, except in the rare cases in which they are rebuffed by the Supreme Court (e.g., Rasul), they are largely succeeding at changing the baseline of the debate–and with very little pushback, at that.

I wonder why we almost never see discussion of thse sorts of issues from Australian bloggers who style themselves as “classical liberals” or “libertarians”? Are they old-fashioned Lockean liberals concerned only about property rights to the exclusion of other equally basic freedoms? Or are they really just thinly disguised Tory apologists who only complain about threats to liberty when they’re perpetrated by nanny state socialists? Feel free to explain in the comment box if this observation applies to you.

About Ken Parish

Ken Parish is a legal academic, with research areas in public law (constitutional and administrative law), civil procedure and teaching & learning theory and practice. He has been a legal academic for almost 20 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in the early 1990s.
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Jacques Chester
Jacques Chester
15 years ago

I think that we closeted Lockean Libertarian Loonies get annoyed that our basic, central argument that state power gets abused – no matter how formed, structured, guaranteed, restricted, bound, divided, separated, set in tension or otherwise regulated – continues to get ignored in the here and now.

Otherwise put: the more power a government attains in any sphere, the more power it can eventually get in all spheres. The welfare state and the warfare state are not antagonistic: they are merely different faces of the same thing.

What does this mean with Bush’s wiretapping? Previous expansions of US Executive power have led to this point. It’s quite beside the point who is responsible, it’s happened, and once someone gets away with it, it’ll be done again in future. It used to be scandalous that a US President could order military action without recourse to Congress. Now it is routine. Currently it is scandalous to ignore legislation, some day I very much fear it will be commonplace when “in the national interest”.

What’s the upshot? Institutions cannot hold the line by themselves. No matter how well framed, a constitution can be subverted. Even trying to prevent subversion of original intent by supplying exacting detail will backfire: more text means more opportunities to fiddle.

So it comes down to individuals with ideas. To arguing patiently and incessantly that private property is desirable, that any aggrandisement of the state (in any branch, form or place) is inherently dangerous and to accept that the line will not always be held – that rolling back today’s abuses may be the task of tomorrow’s generation.

Nicholas Gruen
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Nicholas Gruen(@nicholas-gruen)
15 years ago

And anyway Jacques, why is it that having a smaller government is a bullwark against it’s abuse. Are people safer from tyranical government in Chile or Sweden? In Singapore or Australia?

The argument you put has always struck me as about as plausible as the argument that ‘growth’ has caused all these bad things like pollution and resource depletion so what we need to do is stop growth. In each case, it’s a case of how one shapes something, not it’s existence or otherwise, or its size or otherwise.

Gummo Trotsky
15 years ago

I have this vague memory of posting something on our wiretapping laws a while back. Or maybe I only wrote something, or just thought about writing something. No matter – it’s pleasing to think that getting standing to challenge B-Party wiretaps might not be the problem here that it is in the US. Not that I’m planning any challenges myself of course.

Actually, I did post something, back in February – way before the Lockean Libertarian Loonies started conspicuously ignoring the issue. BTW, I’d hate to be described as a Lockean Libertarian – Loony or Otherwise. Seeing as how his work in social theory and other areas of philosophy was funded, in part, by his involvement in the African slave trade.

derrida derider
derrida derider
15 years ago

Yep, terrorists come and go (they have in the past), but Big Brother is forever.