Wednesday, December 28, 2005

A little 4th Amendment lesson

Would I be concerned if the President were breaking the law? Absolutely. But what has been ignored, so far as I can tell, is that the spying of which he is being accused isn't illegal, it just wouldn't allow them to arrest anyone with the information.
Hence the need for the 4th Amendment lesson. The reason police obtain warrants isn't because they fear criminal prosecution for doing a search without one. To the extent that a warrantless search of a home is illegal, police officers would almost certainly be covered under qualified immunity. They get a warrant because the exclusionary rule (which was invented by the Warren Court in the 1960's) says that they can't use evidence gained from an illegal search in a criminal prosecution (the so-called "fruit of the poisonous tree" doctrine). And... that's about it. So, if the police think you have drugs in your house, and they kick the door in and take the drugs without a warrant (or a good-faith belief, or exigent circumstances, or one of the other exceptions) they can't use those drugs as evidence against you in a criminal prosecution. Unless they can cure them another way (again, an exception). Oh, and they could like use them against other people who were in your house buying/selling/using, since they wouldn't have standing to challenge the search, but that's a topic for another day. But you'd be safe from prosecution. On the other hand, you wouldn't get the drugs back (since they are illegal) so if the police were trying to prevent you from selling them, they have succeeded.
Sometimes this is known as the "ticking time-bomb" scenario: What if police think there is a bomb, but don't have a warrant? Most would say they should seize the bomb, pass up the chance to prosecute the bomber on that count, but just place surveillance on him until he screws up in some other way.

So, a long-winded way of saying that yes, I'm troubled by the fact that the President may have spied on U.S. citizens domestically. However, I'm not troubled if these people were not citizens, nor would I have been troubled if the spying had taken place on the other end (i.e. you call an international number the NSA has been monitoring over there)
To be honest, I'm more offended by the tactical stupidity of it all. Since the FISA courts do give out warrants like hot-cakes, why not just apply for the warrant before the 72 hours expires? Especially if you've heard something good during that time? You don't even have to stop watching football on Sunday; just do it when you get to work the next morning.

Monday, December 19, 2005

The War on Trust

Don't you think the fact that the Secretary of State felt the need to use the word "authority" approximately 7.5 times per minute on Meet the Press is a Freudian confession that she doesn't, in fact, think that the President has the authority to eavesdrop on anyone he damn well pleases?

This is illegal, this is frightening, and this is the precise moment history will judge Conservatism. At what point do you admit to yourself, quietly, in your gut, that you cannot pretend to support a deranged man with a God complex any longer? You can't look yourself in the mirror after trying to spin this 1984 business in public for a paycheck. Yes, he means well; at least in some "nice to dogs and children" sort of way; but so what?

There are no good reasons for this. At all.

There are two reasons for this. One, obviously, is that he's spying on people he shouldn't be. I wouldn't be the least bit shocked to find out that Bush has authorized, supported, and lusted after the the illegal survelliance of peaceful anti-war groups, newspapers, think tanks, TV news stations, universities, the DLC, and anyone else who may question His wisdom. These are the only people the FISA court would ever deny warrants for; although that court has been Astoundingly hospitable, all things considered. You don't even need to get a warrant until 72 hours after you've started the spying for crying out loud.

The other reason is that George W Bush is personally offended by the concept of "getting a warrant". A warrant is a permission slip, and he doesn't have to ask anyone's permission now that he's President dad. See, I can be president too dad. Look at me daddy. And so on.

Most likely he wanted someone spied upon, and couldn't even get a drunk John Yoo to sign off on it, so he orded the clandestine program. Because He can do whatever He wants.

Honestly, how is this ok to you? Do you have any reservations?

Friday, December 16, 2005

The War on Saturnalia

Why is the Fox News board room very obviously and very consciously whipping the conservative rank and file into this completely bogus and transparently invalid lather over Christmas? How Straussian. Intentionally liquoring up the masses with bile during the holiday season is a mightily unChristian endeavor. And to be honest, I see some Hotel Rwanda shit in our future if you guys are allowed to keep playing this game.

My friend, seriously, do you support this war on Christmas nonsense or do you see through it?

Besides, if your side really wants to pick this fight, then the good Dr. Dobson is going to find himself on national television explaining to me how, exactly, Easter’s not the continuation of an ancient pagan fertility ritual. Although I suppose he could always produce a lost gospel mentioning the epic battle between Jesus and the giant rabbit or something.

Monday, December 05, 2005

Originalism: A necessary grounding

In many ways, the critique of originalism is spot-on. There are some (maybe many) who use originalism as a facade for writing their own values into the Constitution. But I think if one is honest about Originalism (both strengths and weaknesses) there is some real merit to the idea, certainly more so than other (i.e. Living Constitution, etc.).
As a for instance: Let's talk about Brown. I had a Con Law professor in law school who said that one of the weaknesses of any legal theory was that it had to be able to explain Brown in order to be taken seriously. That is, an argument beyond "good policy, bad law". And while I think he is right, I think that underlines a disingenuity underlying all political debates in the country. Why is it so terrible to say, "The result in Brown was good policy, but it was incorrect legal theory"?
Though I may regret this later if nominated for Supreme Court, I think that at the time of Brown, with Plessy as precedent, on a less charged issue it would have come out the other way. That is, if the stakes were lower, stare decisis would have been given more weight and the case would have come out the other way. Of course the outcome in Brown was the right one from a policy perspective. I'm just not so sure it was consistent legally.
What I don't understand is why it is so terrible to say that the Constitutional outcome is not one you like, so instead you are going to change the Constitution. The amendment process is a pain, I'll grant. But I think it's preferable to unelected Judges "reading into" the Constitution to discover the outcome they think correct. The amendment process may take time, but so do does the judicial progress. Remember that while Brown was decided in 1954, with re-hearing, etc. taking another couple of years. The case was originally filed in 1950, earlier in some other jurisdictions.
The stickler is how to square this with the protection of minority rights. The honest answer is, I don't know. I think the idea that the Constitution clearly protects the "right" of sodomy is pretty silly, but then again I've always been skeptical of "penumbras". The real problem is that litigating political issues transforms the debate in a way I don't like. Instead of talking about the merits of gay marriage, or Roe, we start talking in code about "privacy" or the like, and we do so over judicial nominations.
Ultimately, I think we have to agree to recognize a difference between a Constitutional right (no searches/seizures without a warrant) and a policy choice (sodomy should/should not be legal). I thinked we've argued this before, but just because I don't like a law that gets passed doesn't necessarily mean I have a constitutional right to do what it forbids.