I had occasion to look up the precise wording of the first amendment to the U.S. constitution the other day, and as long as I was in the neighborhood, I decided to re-read the rest of the Bill of Rights, as well. When I got to the fourth amendment, I was reminded of some arguments I had with various individuals around the time word about our beloved president’s warrantless wiretapping program first came out.

Everyone was focusing on whether the program was permissible under the Foreign Intelligence Surveillance Act, or FISA (it wasn’t). What struck me at the time was that many people in the media seemed to be ignoring the provisions of the fourth amendment, which governs unreasonable search and seizure. The precise wording of the amendment follows:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Now, I can imagine the verbal gymnastics Gonzo must have engaged in to justify the warrantless wiretapping program: “Well, let’s see, we’re acting without warrants, so that avoids the whole probable cause issue. And the constitution only talks about unreasonable searches and seizures. Well, given the magnitude of the terrorist threat, I think these searches, in the form of telephone wiretaps, aren’t unreasonable at all. Hey, presto, no fourth amendment problem!”

The problem is, of course, that there is long-established legal precedent for the argument that telephone wiretaps are in fact among the types of searches that require warrant. In a normal criminal law case, a prosecutor attempting to introduce evidence from a warrantless police wiretap of a suspect’s telephone would be laughed out of court unless he or she could show that some very narrow exception to the warrant requirement was met under the facts and circumstances of the case.

Thus, I believe that even if the Bush administration could legitimately argue that the warrantless wiretaps were permitted under FISA, it would not cure their fundamental unconstitutionality. Any evidence obtained through such a wiretap would be illegal in any court in the United States. And if they ever get around to trying anyone with that illegal evidence, it would be thrown out.

Furthermore, under a legal doctrine known as “fruit of the poisonous tree”, any evidence that was obtained as a result of the illegally obtained information from one of these wiretaps would also have to be excluded from any court case unless the government can also show that they would have discovered the evidence even without knowing about the illegally obtained information, either as a result of other (legally-obtained) evidence or in the normal course of searching. Bye-bye prosecutor’s case.

The Bush administration knows this, for all its protestations that the wiretaps are a legal and appropriate exercise of the president’s constitutional authority. That is why they have been going through the whole rigamarole with the Military Commissions Act. Because if these cases are ever heard in a real court, where due process and other rights exist and are regularly upheld, they are going to have to let a whole bunch of people go free. Even if the evidence indicates that the people held in Gitmo are actually guilty of anything (something I am not at all convinced of, with respect to most of the prisoners).

The simple fact of the matter is that if the government truly had any legitimate cause to suspect any of the people whose phone they have wiretapped – any at all, really – they could have gotten a warrant from a court that was specially created under FISA solely for the purpose of hearing such requests. People on the court have appropriate security clearances for such matters and are carefully screened, so the risk of disclosure is minimal. And in the entire history of the FISA court, it has apparently only rejected a couple of requests for warrants, out of literally thousands of requests. Obtaining such warrants would automatically bless any government action taken under the warrants with a cloak of constitutionality, removing any threat of evidence being excluded.

All of which raises the very interesting question, why didn’t the Bush administration obey the law and the constitution and seek the warrants from the FISA court?

I submit to you that the reason is that the wiretaps have been far in excess of anything that anyone, even the rubberstamp FISA court, would deem a reasonable exercise of governmental powers. What little we know about the wiretapping program is pretty appalling – ask yourself, how much more is there that we don’t know?

And furthermore, I think that Bush and Cheney really ought to be impeached.

jane doe