Tags: Arrogance | and | Abuse | Power | U.S. | Spying

Arrogance and Abuse of Power in U.S. Spying

Tuesday, 20 December 2005 12:00 AM

There are jokes in the criminal justice system about how easy it is to get warrants from magistrates or judges. Most will never, ever say no. Probable cause is whatever the investigator claims he has before he gets the warrant. Holes are filled in later. This is not exactly how it's supposed to be, but it's how it is.

Now, imagine how much easier than that it would have been for the government to get a warrant in the days after 9/11 just by uttering the word "terrorism."

Of course, they didn't have to go to your local magistrate to do that, although they could have, 24 hours a day in many cities. Congress set up special secret courts for the government for just these circumstances and even made provisions for investigators to wiretap first and get court approval later.

And, as I said, imagine saying no after 9/11.

Mind you, these are judges the majority of whom were appointed by Republicans – Reagan, Bush and Bush.

So why, given how unbelievably easy and absolutely certain are the prospects of getting a warrant, would you not bother?

And why would we care? After all, if warrants are so easy to get, what difference does it make if you don't get them?

The answer to the latter question is easy. Even if getting a warrant is automatic, the necessity of filling out the paperwork, memorializing what evidence you have and seeking review imposes limits of its own on the discretion of the investigator, who would otherwise be free to investigate with no restraints at all. You have to write down who you're wiretapping and why, what your evidence is.

When we're dealing with potentially massive invasions of privacy, asking that someone neutral – an objective magistrate not invested in the work of making a case – review the sufficiency of the evidence means that even if the review is automatic, the applicant for the warrant has to impose on himself or herself some standards of self-restraint. Which, one would think, is a good thing.

This is the part I don't get. The arrogance. Even if a warrant is so easy to get, we still won't bother. The Constitution in its genius affords flexibility, protecting you only from "unreasonable search and seizure," but we'll demand wholesale power.

It is precisely the same attitude that has characterized this administration's approach to detainees at Gitmo, as former Deputy Assistant Attorney General John C. Yoo explained in a recent debate with me at the University of Houston Law School. The administration position is that neither "the criminal justice model," with its constitutional guarantees, nor the traditional "war model," with the protections of the Geneva Convention, apply, since we are at war against a terrorist non-signatory non-state.

My biggest problem with my friend's clever argument is that it leaves us lawless, and that is a problem for a number of reasons, including the fact that we may sometimes be wrong, as well as how we are seen by the world and how we see ourselves.

It is no answer to say that the president sets the rules, if no one ever reviews them but the prosecutor who applies them. That isn't the rule of law, it's just the rule of the ruler. We have all kinds of names for such systems, but none of them are positive. What makes ours a system of laws and not of men is that we have checks and balances more than anything else.

That is, fundamentally, why it is a different and a better system when privacy is invaded only on a judge's order, even if the prosecutor wins 99.9 percent of the time. Especially because that is so, the administration gives up too much for too little, betraying its claims of strict constructionism for a constitutional power grab that its New Deal forebears could not have imagined. And they call themselves conservatives? It all depends on where you stand.

If you want to play God, I used to say to my students, go be a prosecutor. The irony in the system is that the judges who we increasingly exclude from decisions are the grown-ups, appointed by the president, confirmed by the Senate. The prosecutors and investigators are kids, young people, my former students. God bless.

COPYRIGHT 2005 CREATORS SYNDICATE INC.

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There are jokes in the criminal justice system about how easy it is to get warrants from magistrates or judges. Most will never, ever say no. Probable cause is whatever the investigator claims he has before he gets the warrant. Holes are filled in later. This is...
Arrogance,and,Abuse,Power,U.S.,Spying
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2005-00-20
Tuesday, 20 December 2005 12:00 AM
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