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More on So Much for Law and the Constitution
From: David Farber <dave () farber net>
Date: Sun, 18 Dec 2005 01:10:04 -0500
Begin forwarded message: From: "Marc D'Angelis" <mcdangelis () gmail com> Date: December 17, 2005 11:24:10 PM EST To: dave () farber net 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. ------------------------------------- You are subscribed as lists-ip () insecure org To manage your subscription, go to http://v2.listbox.com/member/?listname=ip Archives at: http://www.interesting-people.org/archives/interesting-people/
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