From: jim bell <jimbell@pacifier.com>
Date: Sun, 6 Oct 1996 11:35:00 +0800
To: Greg Broiles <gbroiles@netbox.com>
Subject: Re: legality of wiretapping: a "key" distinction
Message-ID: <199610060111.SAA07880@mail.pacifier.com>
MIME-Version: 1.0
Content-Type: text/plain


At 02:14 PM 10/5/96 -0700, Greg Broiles wrote:
>At 04:42 PM 10/4/96 -0800, jim bell wrote:
>>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.) 

Then you ignored the rest of my commentary.  While wiretaps were narrowly 
held "constitutional" in about 1932, as I vaguely recall, that doesn't mean 
that they were LEGAL:  On numerous occasions subsequent to 1932,  Congress 
rejected laws which would have legalized the use of wiretaps.  They were not 
provided for under law.  Obviously, you could take the position that 
Congress could have approved of them at any time, as they did in 1968, but 
apparently it took such approval to _legalize_ them.

My position, of course, is that they are unconstitutional, period.  But I 
also believe that the cops' use of wiretaps during this period when they 
were _illegal_ undermines their credibility and judgment when they claim 
they were constitutional.  Minor point?  Maybe, but it seems to me that 
anybody who tries to claim that he's on the side of the legal system's 
dictates has a bit of a problem if it turns out he's been engaging in 
illegal activity regularly.

>>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.

You're ENTIRELY misunderstanding (or misrepresenting) what I'm saying!  I'm 
well aware that the SC disagrees, but that is simply because they are 
entirely wrong in this matter.  Why should this surprise you?  Given the 
rash of 5-4 decisions in the last few years, there can be no illusion that 
they always come to the right decision.   I don't claim that they agree with 
me, quite the opposite.  But if anything, their error justifies removing 
them by whatever level of force turns out to be necessary.

> 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.

Which, then, is entirely my point:  The reason I think it's going to be 
necessary to "put THEM in prison or kill THEM" is because they will 'never' 
accept the correct interpretation of the Constitution. (See?  I simply DO 
NOT ACCEPT the SC's "supremacy" in this.  Neither did the founding fathers, 
BTW.  The people are supreme, and by that I DO NOT MEAN 50%+1 of the people, 
either.)

"Never" you ask?  Okay, strictly speaking, the SC is very occasionally 
capable of admitting that it was wrong.  But frankly, I don't think they 
have the _right_ to be wrong, and I don't feel that the hypothetical 
possibility that they may fix their collective heads some day is a valid 
argument against loading up an ANFO bomb in a Ryder truck.  (there may be 
_other_ reasons against this, of course, and I'd prefer a more selective 
solution!)


>>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.

That is yet another issue that has yet to be properly challenged.  "Without 
a challenge that includes all parties, how can we be sure of any decision 
that doesn't include all parties?"


> 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, 

Your statement is inadvertently illuminating.  Legal decisions are not 
supposed to be made by people who have a stake in the outcome.  Here, you 
are acknowledging that there is no way to expect the current legal system 
will come to any kind of objective  decision concerning these matters, 
precisely because they would reject any decision which was seen as "mak[ing] 
law enforcement effectively impossible."  This sounds like a classic 
conflict-of-interest, huh?  It's not quite the same as receiving a bribe, or 
falsely convicting an ex-wife's lover of murder, or some sort of purely 
personal issue.  Nevertheless, it is a conflict of interest.

And BTW, you vastly overstated your case by suggesting that the rejection of 
wiretaps would "make law enforcement...effectively impossible."  Before 
telephones, there were no wiretaps, right?!?  (I won't claim "justice was 
done," then, but they would have claimed it was...)    And even today, 
probably 99%+ of cases decided by  courts within the US do not contain any 
wiretap evidence at all (I invite you to correct me if I'm wrong, here!) so 
I suggest that it is obvious that even the complete rejection of wiretaps 
wouldn't "make law enforcement...effectively impossible."  (how could it?)

So were you just exaggerating for effect?  No, I don't think so.  You just 
demonstrated the typical kind of biased, "the ends justifies the means" 
myopia which probably affects nearly all judges and cops, and most lawyers.

As penance, I suggest you go back and re-visit the issue.  Just exactly how 
"effectively impossible" must a decision make law enforcement before a judge 
will decide the other way on the legitimacy of a tactic?  I don't doubt that 
the Star Chamber thought that racks, thumbscrews, and various other torture 
implements were necessary for _their_ job...

>and therefore is not useful.

No, actually it's potentially quite useful!  It's just highly embarrassing 
for anyone who has a strong psychological stake in working entirely within 
the American legal system.

>It might or might not be
>theoretically elegant or logically attractive, it will not be adopted. So
>stop thinking about it. 

Ultimately, I don't think there's even a choice in the matter:  The current 
system WILL be dropped, possibly directly onto the heads of the people who 
currently populate it!  Are you going to be part of the solution, or part of 
the problem?




Jim Bell
jimbell@pacifier.com