From: Greg Broiles <gbroiles@netbox.com>
Date: Sun, 6 Oct 1996 07:31:33 +0800
To: jim bell <jimbell@pacifier.com>
Subject: Re: legality of wiretapping: a "key" distinction
Message-ID: <3.0b28.32.19961005135759.006a8d70@ricochet.net>
MIME-Version: 1.0
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At 04:42 PM 10/4/96 -0800, jim bell wrote:

>I've been saying this for years!  I think that one of the most telling 
>arguments is that the main (if not the only!) reason that wiretaps are kept 
>secret is that, for obvious technical reasons, they CAN BE kept secret!   
>Pardon me for being facetious, but I see no principle in the Constitution 
>that states "Anything the government can get away with is okay," so I think 
>it's predictable that wiretap law would be constitutionally defective.

I see. Wiretaps have been litigated for 70 years, but the reason they're
still Constitutional is that nobody's pointed out to a court the absence of
the "Anything the government can get away with" clause. Good thing you
found that. Are there any other secret missing clauses which render other
things unconstitutional which you haven't mentioned yet? 

>I think it's really very simple.  Wiretaps in the US were illegal until 
>1968.

Then please explain what the Supreme Court was doing some 40 years prior to
1968, in _Olmstead v. US_ 277 U.S. 438 (1928), where the product of a
wiretap was held to be admissible because without a physical trespass there
was no Fourth amendment violation. (This is no longer good law.) 

Have you ever even driven past a law library? 

>Of course, some 
>lawyers (who have been trained to accept the status quo with little or no 
>challenge) will disagree!  However, those same lawyers would have accepted 
>the Dred Scott decision without question, Plessy vs. Fergusen, etc.

There's a difference between understanding the status quo and liking it.
But making up your own interpretation of the Constitution and then just
repeating it over and over is not legal argument and doesn't win cases.
It's malpractice; and if you do it on your own behalf it's just sad to
watch. Making up your own rules is a nice philosophical exercise (and you
could probably make some money if you printed out all of your weird
conjectures and sold them to the same militia goofballs who get excited
about yellow-fringed admiralty flags and "Comptrollers' Warrants" and all
of that bullshit) but it's not useful if you want to deal with people in
the real world. It doesn't really matter if there's a secret reason why the
US Government is actually a bankrupt religious for-profit corporation
organized by FDR and income taxes go straight to the Grey Aliens and
wiretaps weren't "legal" until 1968; the legal system pretends that that's
not true, and soldiers on regardless. You can choose to understand the
legal system, or not. I think it's less dangerous to me if I understand it.
This doesn't mean I like what it does, or that I think what it does is
morally correct or consistent with the way I'd read the Constitution. But
active misunderstanding can be dangerous when you're dealing with a system
that can and will take all of your stuff away or put you in prison or kill
you.

An attorney practicing in the era of Dred Scott or Plessy v. Ferguson would
do his or her clients a serious disservice to fail to tell them what the
status quo was. Being honest and realistic is much kinder and more
responsible than being optimistic to the point of dishonesty. You clearly
have no qualms about simply making up your own version of the law and
suggesting that it's got a chance of being adopted in court. Would you want
an attorney who did that, or would you like an attorney who gave you an
honest assessment of what courts were likely to do with your argument(s)
and fact(s)? I don't want an attorney who will lie to me or help me tilt at
windmills without telling me that I'm tilting at windmills. And I don't
want an attorney who tells me "all wiretaps are unconstitutional" if
wiretap evidence can be and will be admissible.

Every few weeks there's someone on the list (whose name escapes me) that
pops up and tweaks Tim with the notion that there's no such thing as
"negative reputation", e.g., that there's no person who says things that
are consistently false. As far as I can tell, your comments about the legal
system are the proof that Tim's critic is wrong. It's really not possible
to simply make up your own version of how law ought to work, because law is
about a shared body of rules & interpretations & expectations. If you are
not sharing in the way other people do it, you are not doing law. You are
doing philosophy or navel-gazing or something else which may be very
honorable and right and good but it isn't law. 

>While I'm sure that I will be corrected if this is wrong, somehow I doubt 
>whether there has EVER been a "before-the-fact", full challenge of a wiretap 
>order _including_ representation for the target of the wiretap.

I suspect there hasn't been one because it's not required under the way the
Constitution is and has been interpreted. Here's a tip: if you think of a
way to interpret the Constitution that would make law enforcement not
merely less efficient but effectively impossible, your interpretation will
not be adopted, and therefore is not useful. It might or might not be
theoretically elegant or logically attractive, it will not be adopted. So
stop thinking about it. 

>I don't know about you, but somehow I'm past the idea that it's possible to 
>reliably get unbiased justice in court.  Know what I mean?

I agree with you, but your chances are better if you don't act like a loon.

>Well, they don't technically need the "cooperation," but they are still 
>required to inform the target.  For example, if they get a search warrant 
>for a house that happens to be empty when they show up, they are obligated 
>to leave notice of the search and lists of what was taken.  Apparently they 
>need to do this EVEN IF they would have been able to get into the house 
>surreptitiously without leaving any trace.  

Hey, you got something right. Go back to wherever you got this from and
read it some more.


--
Greg Broiles                |  "We pretend to be their friends,
gbroiles@netbox.com         |   but they fuck with our heads."
http://www.io.com/~gbroiles |
                            |