Same Game, New Rules
Last week, the FBI announced they had done something very, very smart in conducting separate investigations parallel to the CIA involving the prisoners at Guantanamo Bay. This move was announced about the same time as this memo came to light. This is setting the stage for securing convictions in an American court for some of the most notorious terrorists there. Read all that again. The FBI, using techniques and limits available to just every cop in America, is securing evidence separate from the CIA program that used torture. No torture, no eavesdropping, but reading them Miranda rights, advising of them of their right to council and treating them like common criminals. So, as the rules on gathering evidence on terrorists start to look more like the kind Eliot Ness would have used against Al Capone, we also have the lapse of the FISA secret wiretap authorization. The biggest hang up about the House re-authorizing is the immunity for telecom companies (with many arguing that if the administration is right and nothing those companies did was illegal then they don't need immunity, do they?) and the FISA courts' oversight authority. And if we're making going after terrorists more like going after every other kind of criminal, then we might actually make this all work.
While President Bush has called this a serious problem since the law allowing warrantless wiretapping has now lapsed, this is far from anything to panic about. It was these "limited methods" that allowed us to catch Eric Rudolph, Sheikh Omar Abdel Rahman and Ted Kaczynski, three of the most dangerous and wanted terrorists in American history. We catch criminals, bad ones who didn't want to be caught, without waterboarding, endless years of detention and denial of basic rights to suspects. This is further proved by the fact the FBI was so scared of having to deal with possibly tainted evidence they sent in their own people to do it all clean and by the book. They don't need to show that there was no torture to get the evidence admitted, all they need to show is that they COULD have gotten it legally. It's called inevitable discovery and it's the exception to tossing out tainted evidence rules. Basically, the theory says that if the prosecutors can show a way that illegally obtained evidence COULD have been gotten in a completely legal manner, then it can be admitted, at judge's discretion. So, the FBI sent in their guys who never talked to CIA guys so they could have inevitable discovery cases latter on.
The FBI wants to do it by the book, which they have always had a love for. They are the ones in charge of prosecuting and investigating political corruption cases all over the country, so they know the consequences of doing it wrong. They know what happens when you play fast and loose with rules and jurisdictions: a jury of American citizens will help toss it out in such a way that you can never prosecute it again. Under Bush's current system, they can just grab people, hold them and interrogate them until they get bored of it. FBI on the other hand has every specific rules that apply to anyone they want to charge, citizen, non-citizen or anything in between. They don't care who you are, they just know that as an American law enforcement agency, they have to do it by American rules. This means lawyers, rules about basic dignity and the rule of law. As much as some argue the Geneva Convention doesn't cover this, well then, American jurisprudence does. America has them and America has to play by its own rules, that was one of the things the Founding Fathers wanted most in this country. They wanted it so much, they enumerated specifics about it all in the Bill of Rights. It was not meant to be an exhaustive list, but a list of "we want all rights, but we are DEAD SERIOUS about these ones here". They knew the dangers of taking away rights of the accused.
But, there is the upside of FISA getting back to normal and setting up cases that can be prosecuted in normal American criminal courts. We used them for Bonnie and Clyde, Dillinger and Capone. It wasn't perfect and it wasn't pretty, but everyone looking back agrees they were fair, or at least as close as humanly possible at the time. Courts aren't perfect, but if we keep encouraging people to make up their own rules as they go, we get worse. Indeed, and it is in the fight against terrorism that democracies slip the fastest. Look at the case of the Guildford Four, later made into the movie In the Name of the Father. This wasn't long and far away, this was within recent memory and in one of the most civilized courts in the world. Government massively changed rules on how to fight terrorists, most of the people didn't understand the limits so they made up their own, as they saw government abandoning their old limits.
This is not to say that governments can't change their laws on dealing with terrorists. In this day and age, they have to. But there are underlying principles that guide laws and in America, treating the accused fairly has always been one of them. But now, we re-defined the idea of accused, re-defined the idea of laws and re-defined all of it just to make it easier to take on terrorists. The thing about ideals is that they'll come back. With Congress fighting warrantless wiretapping, it shows that once we thought it was a good idea, now we're not so sure about. Yeah, we recognize the need to surveillance, but we also recognize the need for court oversight to do so. There are a lot of things that do need better laws and better enforcement, but we don't need to rethink the idea that the accused get lawyers to fight back properly.
Because most of all, we cherish citizens fighting the government.
So it is written, so do I see it.
PS, Happy Birthday, Mei-Mei
While President Bush has called this a serious problem since the law allowing warrantless wiretapping has now lapsed, this is far from anything to panic about. It was these "limited methods" that allowed us to catch Eric Rudolph, Sheikh Omar Abdel Rahman and Ted Kaczynski, three of the most dangerous and wanted terrorists in American history. We catch criminals, bad ones who didn't want to be caught, without waterboarding, endless years of detention and denial of basic rights to suspects. This is further proved by the fact the FBI was so scared of having to deal with possibly tainted evidence they sent in their own people to do it all clean and by the book. They don't need to show that there was no torture to get the evidence admitted, all they need to show is that they COULD have gotten it legally. It's called inevitable discovery and it's the exception to tossing out tainted evidence rules. Basically, the theory says that if the prosecutors can show a way that illegally obtained evidence COULD have been gotten in a completely legal manner, then it can be admitted, at judge's discretion. So, the FBI sent in their guys who never talked to CIA guys so they could have inevitable discovery cases latter on.
The FBI wants to do it by the book, which they have always had a love for. They are the ones in charge of prosecuting and investigating political corruption cases all over the country, so they know the consequences of doing it wrong. They know what happens when you play fast and loose with rules and jurisdictions: a jury of American citizens will help toss it out in such a way that you can never prosecute it again. Under Bush's current system, they can just grab people, hold them and interrogate them until they get bored of it. FBI on the other hand has every specific rules that apply to anyone they want to charge, citizen, non-citizen or anything in between. They don't care who you are, they just know that as an American law enforcement agency, they have to do it by American rules. This means lawyers, rules about basic dignity and the rule of law. As much as some argue the Geneva Convention doesn't cover this, well then, American jurisprudence does. America has them and America has to play by its own rules, that was one of the things the Founding Fathers wanted most in this country. They wanted it so much, they enumerated specifics about it all in the Bill of Rights. It was not meant to be an exhaustive list, but a list of "we want all rights, but we are DEAD SERIOUS about these ones here". They knew the dangers of taking away rights of the accused.
But, there is the upside of FISA getting back to normal and setting up cases that can be prosecuted in normal American criminal courts. We used them for Bonnie and Clyde, Dillinger and Capone. It wasn't perfect and it wasn't pretty, but everyone looking back agrees they were fair, or at least as close as humanly possible at the time. Courts aren't perfect, but if we keep encouraging people to make up their own rules as they go, we get worse. Indeed, and it is in the fight against terrorism that democracies slip the fastest. Look at the case of the Guildford Four, later made into the movie In the Name of the Father. This wasn't long and far away, this was within recent memory and in one of the most civilized courts in the world. Government massively changed rules on how to fight terrorists, most of the people didn't understand the limits so they made up their own, as they saw government abandoning their old limits.
This is not to say that governments can't change their laws on dealing with terrorists. In this day and age, they have to. But there are underlying principles that guide laws and in America, treating the accused fairly has always been one of them. But now, we re-defined the idea of accused, re-defined the idea of laws and re-defined all of it just to make it easier to take on terrorists. The thing about ideals is that they'll come back. With Congress fighting warrantless wiretapping, it shows that once we thought it was a good idea, now we're not so sure about. Yeah, we recognize the need to surveillance, but we also recognize the need for court oversight to do so. There are a lot of things that do need better laws and better enforcement, but we don't need to rethink the idea that the accused get lawyers to fight back properly.
Because most of all, we cherish citizens fighting the government.
So it is written, so do I see it.
PS, Happy Birthday, Mei-Mei