Over at Glenn Greenwald's site, very interesting stuff, as ever, on the Congress-DOJ interactions over the wiretapping insanity. From the almost always superb comments section, here's a wonderful example of a question put by Democrats to the DOJ folks, and the DoJ response:Question: 43. Has information obtained through warrantless NSA interceptions been used in any criminal prosecutions?
Answer: The purpose of the Terrorist Surveillance Program is not to bring criminals to justice. Instead, the Program is directed at protecting the Nation from foreign attack by detecting and preventing plots by a declared enemy of the United States. Because the Program is directed at a “special need, beyond the normal need for law enforcement,” the warrant requirement of the Fourth Amendment does not apply. See, e.g., Vernonia School Dist. v. Acton, 515 U.S. 646, 653 (1995). Because collecting foreign intelligence information without a warrant does not violate the Fourth Amendment and because the Terrorist Surveillance Program is lawful, there appears to be no legal barrier against introducing this evidence in a criminal prosecution. See 50 U.S.C. § 1806(f), (g). Past experience outside the context of the Terrorist Surveillance Program indicates, however, that operational considerations, such as the potential for disclosing classified information, must be considered in using intelligence information in criminal trials.
Now, I am no lawyer, and the my understanding of the issues here is dwarfed by many people, I'm sure, but isn't there something just crazy about this answer. Most of the critique up is about how the DOJ is being non-responsive to Democrat questions. But here's an example, it seems to me, where they are coming out and giving an argument, and the argument is ridiculous: Because the purpose of the "Terrorist Surveillance Program" is not to bring criminals to justice, it doesn't violate the Fourth Amendment, and because it doesn't violate the Fourth Amendment it can be used to bring criminals to justice.
Uh . . . if this stuff normally goes on in legal arguments, I am even more uncertain about the whole mechanism we use to adjudicate conflicts in this country.
The point in the comments thread is, correctly, made that DOJ would probably never use the info in a criminal trial because that would submit the legality of the program to judicial review, exactly what the DOJ has been avoiding elsewhere (illegel detention stuff) by either charging folks with minor offenses or letting them go.