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.


At Fri Dec 30, 07:51:00 AM GMT-5, Blogger Gabe said...

You tell me the Warren Court "invented" the exclusionary rule.

So up until 1960 the police could do as they pleased when it came to gathering evidence? Originalism kills me. You make it sound as though Earl Warren wrote the 4th Amendment himself.

It's interesting you brought up the drug war. The war on drugs is the greatest self-inflicted policy wound in our nation's history. Iraq is second. The parallels are eerie.

In both cases public support was sowed by fearmongers. Both are designed to last indefinitely. Both just happen to require enormous amounts of contracting work for the types of firms that tend to have government connections. Both seem inexcusably stupid and evil until you grasp the sorts of bank being thrown around, at which point you very quickly re-examine your sense of ethics because you realize you could probably get a job at one of those firms if you kept your politics to yourself at the office.

And in both the war on terror and the war on drugs the central premise is "good v. evil". And one would be no less of a pariah pointing out the merits of satanism in 12th century Frankfurt than questioning the fundamentals of either of our sacred wars in public today.

To hell with football. Goddam Eagles. My winter sundays haven't been felt so empty since Ray Rhodes was in town.

At Thu Jan 05, 11:41:00 AM GMT-5, Blogger PhD9 said...

"is that the spying of which he is being accused isn't illegal"

The Foriegn Intelligence Survellance Act is a law. It was passed by Congress and signed by the President. It is being breached as we speak. This nothing to do with the 4th amendment.

W. has also made it clear he intends to ignore the McCain amendment AS HE WAS SIGNING IT.

At Fri Jan 06, 02:22:00 PM GMT-5, Blogger Gabe said...

This comment has been removed by a blog administrator.

At Fri Jan 06, 02:32:00 PM GMT-5, Blogger Gabe said...

The 4th Amendment question is whether or not Nixon was correct, "If the President does it, it can't be illegal".

We need to ask him what laws he thinks he does have to follow. He'll keep declaring that he's not a dictator.

And right there, on national TV, as the man's repudiating his life's dream for the 753rd time, is when we finally get to see him crack up in public.


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