Mixed feelings about the NSA wiretap issue

[HamdenRice]

<This started out as a response to Skinner's thread about "Mixed feelings about censure", but it grew quite long, and I also realized it was about a lot more than the censure vote. Hope it is not considered inappropriate to re-post as an OP.>

OK, first let me put on my flame resistant suit.

I abhor the Bush administration's insistence that it can engage in warrantless wiretaps as much as the next DUer, but throughout this controversy, I have had this nagging feeling that this is really not the strongest issue on which to censure or impeach Bush. And the reason is because the law, including the constitutional law, on warrantless searches is more murky than most people would believe.

There is an old cliche in the law: "where there's a right, there's a remedy." It means simply, that one way you know that you really do have an enforceable right, is if the law gives you a remedy for it's violation. Similarly, if there is no rememdy, then you had no right all along.

So we have to ask ourselves, what happens in the ordinary case when the government engages in illegal surveillance, wiretaps or even searches in violation of our rights? The remedy, from the perspective of the trouble we are now in, seems amazingly limited: the evidence collected by the government cannot be used against the defendant at trial -- the suppression rule.

This is a really pissant remedy, because it has always given law enforcement the impression that they can engage in illegal wiretaps and searches, so long as they don't try to use the evidence at trial. You've seen this a million times in cop shows and movies: the renegade cop illegally breaks into the perp's house or taps his phone; after he knows that bad things are going on, he gets a warrant and goes in legally. In retrospect, we now know that when the Supreme Court was developing 4th Amendment law, it should have put more teeth into the remedy of what to do if law enforcement engages in illegal activities -- such as what happens when law enforcement or other governmental entities deny a person of civil rights under color of state law.

More importantly, I have been puzzled by this aspect of the uproar over NSA wiretapping: It always seemed like a case of getting Al Capone on income tax evasion. In other words, the Bush administration has been so rapantly criminal, and its crimes so serious -- including war crimes, torture, secret prisons, detention without trial, and criminal negligence in New Orleans that probably contributed to thousands of deaths -- that I could not understand why the Democrats have isolated this particular act of criminality to hang the censure or impeachment on.

As they say, prosecuting a politician for one act sounds like we are legitimizing others. Does this mean that NSA wiretapping is bad, but torture, secret prisons and detention without trial are OK?

This is the criticism of the Nixon impeachment -- that the establishment came together to remove Nixon, by focusing on obstruction of justice, while specifically not talking about enemies lists, other breakins, the use of the CIA domestically, illegal campaign financing which was really massive bribery, blackmail, extortion, overthrowing foreign governments, prolonging the Vietnam War, and the entire vast set of crimes that Nixon was reported to have committed, but never saw the light of day in the House or a court of law.

When Congress gets into the details -- eg that the NSA is perfectly entitled to evesdrop on conversations between US citizens and foreigners, so long as the citizen's name is redacted from the transcript used by the agency -- the Bush supporters will have a field day characterizing this issue as whether the transcripts were properly typed and edited. That is not going to be understood in Kansas as an impeachable offense, even though those same people feel an unease about massive governmental domestic spying programs.

What really worries me is that this is going to play out like a "lawyer's issue," which is typical of what Washington Democrats tend to focus on.

[fooj]

1. I want them to get into the part where Shrub wiretapped his political

ALLIES and OPPONENTS! That's where the meat is, IMO. Why the hell else do you think everyone on The Hill has rolled over and played dead?

Peace.

[HamdenRice]

28. You are right this is the scandal ...

I believe the only reason bush did not go to the FISA court was because he was engaging in blatant political spying. Why else would he not go to a court that is widely believed to rubber stamp any legitimate intelligence surveillance.

If was can prove that, the issue becomes much more visceral for the public.

[BlueEyedSon]

2. Remedies are codified in the law, no?

Then doesn't this rights/remedies thingie turn the idea of "you have a right unless it is expressly taken away by constitution or statute" on its head?

IOW, if there is no specific mention of the right, the right is assumed.... but since there is no mention there can be no remedy specified.

[savemefromdumbya]

3. but the law isn't murky on this

the issue is whether who authorized the wiretaps from the executive branch i.e. the President was breaking the law and he did. He could have come back to Congress when he first started to do this prior to 2001 and said to them look let me do this legally without warrants etc. But no he didn't he went on and on using this for political gain and political harrassment.

[BlueEyedSon]

4. OK, my previous reply was not too smart... how's this?

We have freedom of speech. And freedom of the press. That's your basic first 2 in the bill of rights.

Devils advocate: what are the remedies if these are denied someone (or some corporation)?

Should we assume that those rights are questionable because there are no remedies?

[HamdenRice]

6. Here's an example ...

You have freedom of speech. Let's say you decide to put on a play that criticizes the police. The police show up and try to shut down your play.

Your remedy is an injuction against the police which forces them to leave you alone. Your remedy proves you have the right.

In more progressive countries, the right/remedy issue often comes up with social and economic rights. The constitution might say, everyone has a right to the basics, such as shelter. But when a homeless person goes to court and says I need a home, and the court says it can't force any particular landlord to give him a home, the conclusion is it's a meaningless right, because there is no remedy.

In the illegal search area, there is a remedy -- but it's very limited: namely the illegally obtained evidence cannot be used against you. But that typical remedy does little to prevent the government from illegally gathering information again, as long as they don't try to use it it court. It's a right with a strangely limited remedy.

Bush can say, we never used this NSA information in court. Or they can admit they did use such evidence and a court could throw out every case in which NSA evidence was used. But this does not stop them from gathering more evidence illegally for other counter-terrorism purposes -- ie just to know what everyone is doing.

[bowens43]

5. The 4th Amendment is NOT murky.

Amendment IV - Search and seizure. Ratified 12/15/1791.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

It's quite clear. There si NOTHING in the Constitution that gives the executive branch the right to violate the Constitution.

[HamdenRice]

7. The Supreme Court interprets the Constitution ...

and you have to ask yourself, what does the Court do when the government violates the 4th Amendment.

Now apply that answer to the Bush administration: they cannot use such evidence in court. It does not say the illegal searcher goes to jail or has committed a felony.

[BlueEyedSon]

10. What about the details of FISA?

[HamdenRice]

11. The FISA Court either

gives or does not give warrants.

[Hosnon]

27. Yeah it is...there are MANY exceptions to the 4th. nt

[mmonk]

8. This is simple.

The law says he has to get a warrant from the court. He bypassed the court. Therefore, he broke the law.

[HamdenRice]

9. yes he broke the law; the sanction is he can't use the evidence nt

[Justice Is Comin]

13. And they double back

with the argument that it was authorized by the AUMF. It's like chasing them around in a roundhouse. We have to create corners so we can back them into one.

[gkhouston]

18. So... he swore an oath to uphold and defend the Constitution.

He has violated that oath, by his own admission.

We get to do what about it?

If the answer is "nothing", then the purpose of the oath was...?

[pnwmom]

12. The larger issue applies to wiretapping AND Abu Ghraib:

and that is, that the President is not a law unto himself. He is subject to the law, and to the Constitution. There is no such thing as the unitary Executive.

But you're right -- harping on warrantless spying isn't enough. We have to think in ten second sound bites, I'm afraid. How do we best get the larger concern across?

[HamdenRice]

17. Well, I think you are exactly right -- it's lawlessness

I think I am being misinterpreted as though I approve of warrantless wiretaps; I don't.

But the big picture is what we need to get across, and you hit the nail on the head -- the idea that the president is not a law unto himself.

The warrantless wiretapping is a part of the bigger picture, that includes torture, secret prisons, detention without trial, faked intelligence and so on. That's what troubles me about censure for this one issue.

In Gore's speech, he really put it all together in a context, whereas I'm afraid this issue takes wiretapping out of the context of violent lawlessness.

[mmonk]

14. Something else to consider.

There is no reason to break the law in this regard unless the spying you are doing is also illegal (would have been denied on constitutional grounds).

[HamdenRice]

19. You're right that's what scares me!

In my tin foil persona, I believe that the administration was using the NSA wiretaps for political purposes. Why else would they refuse to submit to a warrant court that always gave warrants? There is evidence of this in the context of the Bolton confirmation (ie, Bolton was using NSA intercepts of Powell's conversations.)

My worry is that even if these intercepts are illegal, constitutional law of search and seizure lacks teeth to stop it, so long as the evidence is not used in court.

[KoKo]

26. We don't know what they've done because they refuse to tell us and

that's just exactly why the framers wrote "search and seizure" into the constituion. Searching and Seizure isn't outdated enough not to apply to someone spying on my cellphone conversations or data-mining my computer or reading my mail.

Search and Seizure...means just what it says. Searching our person or possessions and Seizing property that belongs to private citizens. My right to speech, my right to write on a computer or on paper.

Gonzales and their Construtionalist Crooked Lawyers want to make folks think the Constitution is "murky" on this...that it's outdated. But words are words and the intent is clear. There are just as many lawyers who do know the consitution who could make mincemeat of the idiots Bush has sucking up around him.

[Vinnie From Indy]

15. A correction

"In retrospect, we now know that when the Supreme Court was developing 4th Amendment law, it should have put more teeth into the remedy of what to do if law enforcement engages in illegal activities -- such as what happens when law enforcement or other governmental entities deny a person of civil rights under color of state law."

This is not correct. The Supreme Court DID NOT develop the 4th Amendment, the framers of the Constitution did. The SCOTUS interprets the document.

It is amusing and tragic to read that Americans should abandon the defense of the rule of law, our most fundamental underpinning, because it is a "murky" concept. Maybe the Dems should use gun control, drunk driving, spousal abuse and divorce as frameworks in which to deliver the ramifications of GOP spying to the idiot hordes that make up their base. Where is the Dem creativity?

[mmonk]

16. As a democrat,

I'm not even sure what democratic elected officials think or support anymore or what they will stand for which really bothers me now. The executive branch controlled by the other party violates standing law and constitutional law and there is hesitation to say or do anything?

[HamdenRice]

21. I said the Supreme Court was developing "4th Amendment law"

which is correct. The vast amount of legal doctrine surrounding the constitution is called "constitutional law" (or for the 4th Am. "4th Amendment law"). Notice the 4th Am provides no remedy and describes no criminal offense for violating the bare language of the amendment. That has been provided by the Court, and the remedy is the suppression of that evidence.

[napi21]

20. You go after a perp on what you can PROVE!

THAT is why Capone was convicted and jailed for tax evasion. Everyone knew he was guilty of many other more serious crimes, but they could never prove it because Capone made sure there were no witnesses!

I think that's the reason Finegold chose the NSA wiretap issue. Shrub openly admitted he'd done it!

[AtomicKitten]

22. self-delete

[radio4progressives]

23. You need to do some Research on the History of NSA Domestic Spying

Have you done any reading on the history of Domestic Spying?

Apart from the Soviet Union's and the SS history of Domestic Spying in those countries, (which should be chilling enough) please do some research on what occured in the early 50's during the McCarthy period and then go to the 60's and 70's and see how destructive these operations have been to peace groups, activists and citizens merely associated with peace groups and organizations.

Many many many books have been written, and articles in the print media of recent incidents involving spying on americans who simply opposed the war in iraq.

i can only hope that after digesting the scope of the history as well as current events - you have a different perspective of what it means to allow domestic spying in any form of democracy.

either you support a free democracy or you support a form of totatlitarian autocracy.

Domestic Spying is anethma to a free democracy, free society.

[HamdenRice]

25. You completely misread my post ...

I agree that domestic spying is terrible, destructive and illegal. What I'm saying is that after the 1970s, the Nixon impeachment, the Church Committee hearings, and the enactment of FISA, strangely little teeth were put in the law. Of course, FISA is the only legal means by which the administration can evesdrop on Americans, but it doesn't say what happens if they don't use that mechanism. And the default rule in law enforcement is simply that the evidence cannot be used at trial.

To put it another way, since the revelations about the Nixon administration, successive administrations have not used illegal wiretaps it seems largely out of self-restraint and the kind of revulsion we both feel about government spying on its citizens.

But it seems to me that torture and detention without trial are more clearcut aspects of the administration's lawlessness than the NSA issue.

[pnwmom]

29. Torture and detention without trial are issues that all Americans can

easily understand. Just as the concept of our port control was easy to understand -- so Bush's numbers took a nose dive. Even the Plame case is relatively easy to frame -- outing a spy.

Unfortunately, warrantless spying is a tougher issue to get across. Of course, it's unconstitutional, it's a crime and the Bush administration should be held accountable. We can all agree on that. But the sad fact is that without a majority in the House or Senate there's little we can do. Unfortunately, trying to explain the concept of warrantless wiretapping gets into things that are much harder for the average American to understand than torture and prison without a trial. Republicans murk up the waters with discussions of 15 days vs. 45 days, war powers acts, probable cause vs. reasonable, unitary executive theories, and on and on. Then it gets perverted into "don't you want us to be able to spy on Osama bin Laden?"

So the question isn't: isn't warrantless spying criminal? Of course it is. The question is, how can we best join to get this country going in the right (that is, the left) direction again? What issues are going to resonate strongly with most Americans?

[KoKo]

24. ACLU Releases "First Concrete Evidence" of Domestic Spying! Anti-War

ACLU releases 'first concrete evidence' of domestic spying for anti-war posted by DU'er here. The article says there's more documentation coming from ACLU's FOIA request.

Bush has probably spied on all our Democrats including Candidates. They stole two elections by putting their cronies in State Government election positions and ramming the HAVA Act Through.

The SPYING goes to the heart of their corruption. They have probably spied on Judges and Newspapers and anyone they consider an ENEMY...And, that's part of how they KEEP their awesome power.

Think about it....It goes to the heart of our Constitution. He broke the laws of the land....and he must be held accountable for it.

http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=364x659259