Begin forwarded message:
From: "Marc D'Angelis" <mcdangelis@xxxxxxxxx>
Date: December 17, 2005 11:24:10 PM EST
To: dave@xxxxxxxxxx
Subject: More on So Much for Law and the Constitution
It is actually a fairly simple matter to understand the thinking of
government lawyers that would go into the calculation of the legal
status of interceptions of private conversations in the pursuit of
defense against terrorism. It would likely follow these lines. What
follows is not necessarily my thinking, but rather the "devil's
advocate" view of the likely thinking of those who, right now,
provide
legal advice to those who serve us in Washington.
First, the operative constitutional language is this, from the 4th
Amendment:
"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."
The amendment prohibits "unreasonable searches and seizures". This is
very broad and flexible language, and it is intended to be so. The
definition of "reasonable" is - has to be - considered in light of
the
purpose of the search and the evil to be avoided.
We of course have developed customs and expectations, and legal
requirements based on them. One of them is addressed in the
amendment:
the issuance of a warrant, that is, advance approval by a judge of
the
proposed search before it is carried out. But the amendment does not
*require* a warrant in each and every situation. Our legal system
requires a warrant (absent recognized exceptions) in the criminal
context. It is our expectation that warrant will be sought,
because that
is what we have become accustomed to, in the context of criminal
investigations.
But these customs and expectations do not necessarily fully apply in
other contexts, including military actions and threats to national
security. Both of these are extraordinary rather than ordinary
situations, and the "normal" rules may not be considered to apply.
Second, give consideration to the risk and possible consequences of
governmental behavior that is either illegal or arguably. Why don't
police officers simply break into the homes of suspects and seize
evidence of crimes they might find? There are two possible reasons.
First, if the government sought to introduce the evidence in a
criminal
prosecution, the evidence would be prohibited if the court found
that it
was seized without proper consideration of 4th Amendment protections,
without a warrant. Second, the aggrieved citizen could file a civil
lawsuit under the 1867 Civil Rights Act, 42 USC 1983, which
provides for
an award of money damages in the event of a violation of a citizen's
civil rights.
But terrorists and their cohorts, or people who might be
terrorists and
their cohorts, are not being investigated for criminal
prosecution, and
many of them are unlikely to try to use the American civil justice
system to seek money damages. Therefore, the only two negative
consequences that our legal system provides against a particular
illegal
"search or seizure" are of little or no moment to the people who are
affected by these investigative efforts.
Thus, the government lawyer could conclude that it is well worth the
risk to use questionable or quasi-illegal methods to obtain
information
about terrorist activities, without worrying too much about such
niceties as judges, warrants, or probable cause standards.
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