More on So Much for Law and the Constitution

[David Farber <dave () farber net>]

Begin forwarded message:

From: "David P. Reed" <dpreed () reed com>
Date: December 18, 2005 4:42:00 PM EST
To: dave () farber net
Cc: ip () v2 listbox com, "Marc D'Angelis" <mcdangelis () gmail com>
Subject: Re: [IP] More on So Much for Law and the Constitution

I'm puzzled by your comment, Marc.   Are you saying that the  
government lawyers presume that everyone being searched and whose  
property is being seized is a terrorist or would-be-terrorist?

I don't think the government lawyers are *stupid* enough to think  
that everyone whose home or office is invaded without a warrant would  
not be an innocent citizen or visitor, who would not seek recourse.

IMPO, it's now impeachment time - unless, of course, you think that  
if they make a mistake, they will just "disappear" the innocent  
civilian, so they can't complain...

There aren't higher crimes and misdemeanors than pre-Patriot Act  
warrantless searches and seizures, or the assertion by the executive  
that he will defy the expiration of the Patriot Act provisions, which  
were not clearly Constitutional in the first place.

> 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 dpreed () reed com
> To manage your subscription, go to
>  http://v2.listbox.com/member/?listname=ip
>
> Archives at: http://www.interesting-people.org/archives/interesting- 
> people/



-------------------------------------
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/