Bush's Shrinking Safety Zone

[Undertoad]

Originally Posted by Rich

This means that if they use this extraordinary power and find that you have broken a mundane law like drug possession or tax evasion, they can use the information gathered without court approval against you in criminal court.

But no - that's one of the strange twists here.

If the legality of the wiretap was not put under judicial review a priori, it would *definitely* be put to judicial review in a criminal case. Since the methods of the wiretap couldn't be evaluated, that evidence would be thrown out before the end of the discovery phase.

Anything would have to be a non-ordinary "enemy combatant" type of war court, not your basic criminal court.

[xoxoxoBruce]

But can they use the things they hear in the wiretap be used to get a search warrant to gather "hard" evidence?

[Happy Monkey]

Not if the judge finds out they did.

[Happy Monkey]

Today's WaPo

The administration contends it is still acting in self-defense after the Sept. 11 attacks, that the battlefield is worldwide, and that everything it has approved is consistent with the demands made by Congress on Sept. 14, 2001, when it passed a resolution authorizing "all necessary and appropriate force against those nations, organizations, or persons [the president] determines planned, authorized, committed, or aided the terrorist attacks."

"Everything is done in the name of self-defense, so they can do anything because nothing is forbidden in the war powers act," said one official who was briefed on the CIA's original cover program and who is skeptical of its legal underpinnings. "It's an amazing legal justification that allows them to do anything," said the official, who like others spoke on the condition of anonymity because of the sensitivity of the issues.

[Undertoad]

Get a dog.

Just now a talking head on cable news said that the NSA's persistent cookies let them track "wherever you go on the Internet".

Boo!

You know, nobody went into a libertarian panic while I was working on libertarian issues.

(The persistent cookies story is a non-issue, a red herring, even the cookies of the NSA are NOT harmful in any way.)

[richlevy]

Originally Posted by Undertoad

But no - that's one of the strange twists here.

If the legality of the wiretap was not put under judicial review a priori, it would *definitely* be put to judicial review in a criminal case. Since the methods of the wiretap couldn't be evaluated, that evidence would be thrown out before the end of the discovery phase.

Anything would have to be a non-ordinary "enemy combatant" type of war court, not your basic criminal court.

Actually, the court has given more leeway to 'tainted' evidence. Alito is rumored to be very pro-law enforcement. I don't think anyone could count on a definitive 'no' on the use of that kind of evidence.

[Undertoad]

The court has said you can use evidence gathered without a proper warrant, or obtained illegally (I think), if you were going to get that evidence legally some other way. Can you think of any other leeway decisions?

[richlevy]

Originally Posted by Undertoad

The court has said you can use evidence gathered without a proper warrant, or obtained illegally (I think), if you were going to get that evidence legally some other way. Can you think of any other leeway decisions?

Or by 'purged taint', if your actions give similar information.

From here.

Although the exclusionary rule has not been completely repudiated, its utilization has been substantially curbed. Initial decisions chipped away at the rule's application. Defendants who themselves were not subjected to illegal searches and seizures may not object to the introduction of evidence illegally obtained from co-conspirators or codefendants,⁴⁰² and even a defendant whose rights have been infringed may find the evidence coming in, not as proof of guilt, but to impeach his testimony.⁴⁰³ Defendants who have been convicted after trials in which they were given a full and fair opportunity to raise claims of Fourth Amendment violations may not subsequently raise those claims on federal habeas corpus, because the costs outweigh the minimal deterrent effect.⁴⁰⁴ Evidence obtained through a wrongful search and seizure may sometimes be used in the criminal trial, if the prosecution can show a sufficient attenuation of the link between police misconduct and obtaining of the evidence.⁴⁰⁵ If an arrest or a search which was valid at the time it was effectuated becomes bad through the subsequent invalidation of the statute under which the arrest or search was made, evidence obtained thereby is nonetheless admissible.⁴⁰⁶ A grand jury witness was not permitted to refuse to answer questions on the ground that they were based on evidence obtained from an unlawful search and seizure,⁴⁰⁷ and federal tax authorities were permitted to use in a civil proceeding evidence found to have been unconstitutionally seized from defendant by state authorities.⁴⁰⁸ The rule is inapplicable in parole revocation hearings.⁴⁰⁹

So if the police or IRS are given tainted evidence, it may still be admissible since the prosecuting agency did not engage in the warrentless seizure.

[Happy Monkey]

Originally Posted by Undertoad

You know, nobody went into a libertarian panic while I was working on libertarian issues.

You weren't 'lucky' enough to have this administration in office.

But man, you really gave up on the whole libertarian idea, not just the infighting in the party, huh?

[Undertoad]

Within the LP, there was more cause for libertarian panic in the previous administration. See UG. The opposition can almost always paint the party in power as anti-libertarian, because they're the ones making decisions and practically every political decision can be seen as anti-libertarian.

Infighting within the party proves that politics is inevitable even amongst the supposedly "principled", which in turn proved to me that "principle" is not the operating consideration that even LPers think it is.

[Happy Monkey]

Originally Posted by Undertoad

Within the LP, there was more cause for libertarian panic in the previous administration. See UG.

I used a small 'l'. I don't know what the big 'L' Libertarian's priorities are, but Clinton was Ayn Rand compared to Bush.

[Undertoad]

Y'know, though, that's how it *always* looks from the opposite school of thought.

From the left Clinton is fixing the health care system.
From the right Clinton is stealing the health care system.
From the left Bush is stealing the social security system.
From the right Bush is fixing the social security system.

I remember how the Ls (and ls) thought about Clinton when his first two big steps were raising taxes and going after medicine. The sky was falling! We were running towards socialism! Failure imminent!

But it wasn't.

[xoxoxoBruce]

Originally Posted by Undertoad

~~snip ~~Infighting within the party proves that politics is inevitable even amongst the supposedly "principled", which in turn proved to me that "principle" is not the operating consideration that even LPers think it is.

So you decided since the "principle" was not the primary consideration of the LPers it wouldn't be yours either?

[Undertoad]

Politics trumps principle in the public square where action counts louder than words.

[Urbane Guerrilla]

No, HM, Clinton wasn't remotely a libertarian of any stripe: his political instincts were formed in an essentially one-party State, which isn't going to make a libertarian. Even worse, the only thing Clinton ever cared about was the convenience of Clinton -- a bad habit in a President. This is how you can explain both his Administration's approach to foreign policy and to domestic policy: what conveniences the Clintons? Just the most conspicuous proof of this is in the behavior of the senior echelon of the DoJ during the Clinton era -- they largely confined themselves to running interference for the one-party-state operations of the Clintons.

Over and above the objections of those who think they have solid grounds to object on, I overtly assess George W. Bush as substantially more libertarian (small L) than his too-statist predecessor. Because of this contrast, as well as the incompetence of the national Democratic Party in general, his predecessor never got my vote, while GWB did, and repeatedly. The Republicans are just more satisfactory in time of war, and it's been that way since the late Sixties.

I haven't seen this aired, but is not what the Bush Administration trying to do is function under war powers? This would be simpler had a formal state of war been declared, true, but does it not behoove us to all actually prosecute the war on Terror? I think it does, yet there are those who would confine their efforts to fighting a war on Republicans instead. WTF, you guys?! Do you have even the smallest hope of explaining and justifying that to a skeptic like me? Lame, half-thought reasons might be enough to satisfy your fellow travelers, but how about the people who regard your behavior with stony expressions?