Centerfield

Why would Bush's botching of prosecutions reflect well on him?

Posted by: AlanDownunder at December 28, 2005 05:50 AM

From the article, it does not seem that the prosecutions have been botched. If the terrorists are freed because the original lead which brought them under investigation came from an illegal wiretap, that would constitute botching. But that hasn't happened yet, and I doubt it will.

My position which I spelled out in an earlier post is that in the immediate aftermath of 9/11, the public expected the Bush administration to do whatever it took to keep us safe, even if it required bending of the law. But it's been four years since 9/11, and its long past time that we got the law and our security needs into concurrence.

Posted by: rickheller at December 28, 2005 09:36 AM

I happen to agree with Rick. If the only way we found out about these individuals was through wiretaps for which we did not have warrants, and cases are then thrown out for evidence obtained through illegal means, then I think there would be a public uproar. We'll just have to wait and see...will be interesting to watch the greatest judicial system in the world sort thru it.

Posted by: AR at December 28, 2005 10:09 AM

If that happens, I don't think the public uproar will be aimed at the President, though. The public already gets pretty upset when everyday garden variety criminals get off on technicalities or because the cops screwed up somehow. If terrorists are released on such grounds, then the uproar will be aimed at the judges, not the President.

Posted by: PatHMV at December 28, 2005 10:13 AM

The problem, Pat, is that W may/may not have gotten clearance to wiretap, and if the suspects walk because W didn't dot the i's, then W's defeated the very purpose of wiretapping in the first place. It's like Dirty Harry collaring a serial killer, only to see the slime walk because Harry forgot to recite the Miranda.

The public doesn't like crooks getting off on technicalities, true, but it doesn't like law enforcement get sloppy about enforcing the law either.

Posted by: Blue Jean at December 28, 2005 10:33 AM

This happens all the time in domestic law enforcement, and is unlikely to provide much help for the defendants. You are not required to ignore possible crimes and criminals just because you first heard about them without a warrant for them in hand. Anonymous tips, confidential informants, overheard conversations, leads from other agencies (both foreign and domestic), etc., play a large part in originating investigations, even in getting surveillance and search warrants.

Now, the evidence actually used in court for a prosecution needs to be "clean," but that's usually a different ball game. Once you know who you need to look at, if they're committing crimes a case can usually be built, completely legally, everything by the book.

I'm with Rick on this one, obviously, as I've been warning about the potential political backlash to those crying up "illegality" since the story broke. When you publicly support terrorists, regardless of the technical legal "rightness" of that support, you're still publicly supporting terrorists, and the general voting public is much less concerned with the technical details of how the terrorists ended up in custody than with the sight of the reflexively self-righteous providing aid and comfort to enemies of the nation, working to release fanatical killers who will happily blow up babies for their cause.

If, say, the already-convicted Lackawanna 6 or Iyman Faris were to gain release because of the exposure of the program, it isn't Bush who's going to be in the sights of an angry public, but those who exposed the program and pontificated so loudly and publicly about the "rights" of evil. Most Americans could give a hoot less how we got those people locked up, they're just happy they are locked up. We're not talking about burglars and car thieves. We're talking about fanatical wannabe mass murderers whose desired claims to fame would make the Ted Bundys and Juan Coronas look picayune.

I can see the campaign commercials being story-boarded in the KarlRoveSecretBunker(TM) right now--the Brooklyn Bridge falling, people screaming, women and children falling to their doom...overlaid with shots of politicians pompously proclaiming that Bush should be drawn and quartered for preventing it from happening. I can think of a dozen variants without even trying, all with that same core message, and all politically devestating to the critics.

As a campaign consultant, I would treat it as a gift from Heaven. One that would keep on giving for a full generation.

Posted by: Tully at December 28, 2005 11:41 AM

But Jean, that's not the purpose of the wiretapping. The fundamental purpose of the wiretapping is to stop the terrorists from killing more Americans.

The wall which used to exist between national security investigations (CIA, NSA, etc.) and criminal investigations (FBI) really did hamper us from discovering terrorist plots like 9/11. Cautious, well-intentioned lawyers trying to insure "prosecutability" prohibited sharing of information between foreign intelligence gathering units and criminal investigations. This helped make criminal cases air-tight (and the Clinton administration had a good record on criminal convictions of terrorists after the fact), but did not help catch the bad guys BEFORE they killed lots of people.

One of the fundamental differences in the American approach to terrorism now from what it was before is precisely over whether to treat foreign terrorist actions as crimes or as acts of war. We tried treating them as crimes. It was probably appropriate to do so early on. We did it pretty well. But it was not effective, as we learned at great cost on September 11, at PREVENTING the attacks. The President and Congress and generally the American people made a deliberate decision after that attack to treat the problem differently, as war rather than as crimes. The wiretapping is part of that fundamental policy shift.

Posted by: PatHMV at December 28, 2005 12:28 PM

And keep in mind that most of the legal scholars actually looking at the details of this, rather than just delivering the knee-jerk reaction to it, seem to be saying, yep, looks like the President is on pretty solid legal footing on this one. If the president has the legal right to conduct the wiretaps, then the evidence and its fruits can be admitted in court, and nobody gets off on technicalities.

Posted by: PatHMV at December 28, 2005 12:39 PM

This case caught my eye in the NYT story

In a Virginia case, Edward B. MacMahon Jr., a lawyer for Ali al-Timimi, a Muslim scholar in Alexandria who is serving a life sentence for inciting his young followers to wage war against the United States overseas, said the government's explanation of how it came to suspect Mr. Timimi of terrorism ties never added up in his view.

Not a particularly sympathetic character to the American public. I hate to wax historical but this echoes past cases regarding the governments efforts towards anarchists early in the 20th cen and then communists later on. Clearly there were bad guys to get (i.e. Czolgosz, McKinley's assassin) and clearly there were abuses (i.e. Emma Goldman's maltreatment in California)

I see these cases as part of a ongoing necessary debate/conflict between the rights of the individual and the powers of the state to investigate and protect. The fact that some of these folks are "unlikeable" helps the states "public case" but doesn't really negate the legal questions.

The feds have a way of "moving the line" till they get slapped back (and sometimes slapped back too far as we saw in the '70's)

Posted by: c3 at December 28, 2005 01:51 PM

The Exclusionary Rule -- that evidence obtained in violation of the 4th Amendment is inadmissible -- is a stupid idea and should be chucked.

(And y'all thought I'm just another liberal.)

The Exclusionary Rule only protects criminals. If the government illegally searches an innocent person's houes, that person has no legal remedy.

The idea of excluding evidence found from an illegal search was entirely invented by American courts (judicial activists, anyone?). In English common law at the time the Consitution was written, the victim's remedy was to sue the government for trespass. Not the exlusion of criminal evidence.

We should have a similar system -- if the government conducts an illegal search and finds nothing, then the victim should get some sort of compensation or right to sue for trespass. But if there's evidence of criminal activity, it should be admitted in court.

While I'm at it, the whole Miranda Warning is almost as stupid.

Posted by: Oberon at December 28, 2005 05:08 PM

There is a good chance that the evidence they obtained could be thrown out due to this legal term - "Fruit of the poisonous tree" - in criminal law, the doctrine that evidence discovered due to information found through illegal search or other unconstitutional means may not be introduced by a prosecutor. The theory is that the tree is poisoned and thus taints what grows from it.

Posted by: Ginifer at December 28, 2005 05:10 PM

Well, I'm not an attorney, so if I'm wrong I'm pretty sure one will wander along and slap down my errors in one form or another, but....

As I said above, it's one thing to use evidence gathered from a warrantless wiretap to prosecute (clearly excludable in almost all situations) and another entirely to use information from a warrantless wiretap (or other source not usable as direct evidence in court) to simply identify a suspect for observation and investigation by a different agency. Law enforcement is NOT required to ignore criminal activity or the existence of a criminal just because that knowledge wasn't brought to them as the result of a warrant. In fact, they'd be clearly negligent in their duty if they did.

Posted by: Tully at December 28, 2005 06:43 PM