Friday, August 03, 2007

Illegal raids, should-be-legal spying

A couple of interesting court rulings on the extent of government power.

A federal appeals court has ruled that the FBI's raid on the legislative office of Rep. William Jefferson violated the Constitution, by allowing the executive branch to interfere with legislative business -- apparently because legislative documents were among those confiscated. It ordered the FBI to return those documents -- but not other, nonlegislative records.

That leaves unclear whether the FBI can use the remaining records in its case against Jefferson, or whether the appeals court has carved out a zone of criminal immunity inside the Capitol. Apparently that decision will be left up to the trial judge -- subject to appeal, of course.

At the time I thought that the FBI raid was legal, despite bipartisan Congressional objections, because the raid was narrowly focused and based around a properly grounded search warrant. And it seemed silly to establish a legal situation where a Congressman could safeguard incriminating documents simply by keeping them in his legislative office.

But that might be exactly what the court has established. While I recognize that Congress needs to be protected from executive-branch coercion, surely the Founders didn't envision an application that was so transparently stupid on a practical level. Nobody is above the law, not even Congressmen hiding out on Capitol Hill. This ruling gives Congress legal protections that not even the President has.

Update: The ever-dependable crew over at Stubborn Facts is assembling a legally informed view of the ruling. Here's the full text (pdf) of the ruling itself.

Update II: Pat at SF has now read the ruling, and I'm pleased to see that his opinion matches mine.

The Washington Post is reporting that earlier this year a FISA court judge ruled that the NSA cannot snoop on communications routing stations in the United States, even when both the sender and recipient are overseas.

This is a pretty big deal. FISA allows warrantless eavesdropping on foreign communications, but pretty much prevents it domestically. But thanks to the nature of the global telecommunications system -- and the evolution of the Internet -- a sizable chunk of foreign traffic is routed through servers in the United States. The FISA ruling placed a sizable chunk of that traffic off limits on a technicality.

While the ruling might have been technically correct -- I don't know -- it certainly violates the spirit of the original FISA law, as well as common sense. If it's legal to spy on the communications between two people, it shouldn't matter if that communication happens to be routed through American soil. The criteria should be based on the people being targeted, not the technical details of how they're communicating.

So Democrats are -- and should be -- scrambling to update the law so that such eavesdropping is legal again. And while in earlier years -- and a Republican majority -- Bush simply ignored laws he didn't like, now he is going about things the proper way, pushing Congress to make specific revisions to the law -- revisions that are much narrower than the sweeping, retroactive approval he sought from the previous Congress.

Of such small steps is respect for the rule of law made.

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Anonymous Anonymous said...

I don't think Jefferson's ruling is much of a win for him. It seems to me the court is saying, they can't take things not related to their investigation. They can keep those documents that are. And after all, that was all they wanted anyway.

And if the ruling means more than that....and Congressmen and Senators have some special protection that the rest of us don't have----then if Sen. Ted Stevens is smart, he'll make sure any incriminating documents are stored in his Capitol Hill office.


8/03/2007 4:03 PM  
Blogger Sean Aqui said...

And Mollohan.... and all the other walking examples of why Congressmembers shouldn't have broad legal exemptions from search warrant rules.

8/03/2007 4:12 PM  
Anonymous Anonymous said...

On this....we agree!


8/03/2007 6:00 PM  

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