The right wing blogosphere has been abuzz since the Newsweek Story this past weekend about an FBI raid on the home of former DoJ lawyer Thomas Tamm, almost as if they desperately wish to paint Tamm as being the recently notorious internet pseud (mostly anonymous) who's been asking some pointed - and apparently knowledgeable - questions on TPM, DU and other Dem/progressive sites. Questions about the legality of the Bush administration's in-house and sub-contracted wiretapping of American citizens as well as his apparent problems keeping all this data-mining within the legal per the FISA court.
Now, we are aware that our Democratic Congress chose to go on vacation after giving Bush 6 months' worth of waiver on having to obtain FISA warrants for these purposes, something many of us see as a blatant sell-out that looks more like a retroactive pass on past lawbreaking designed to cover Abu Gonzales' ass before our rollover Congress could get around to impeaching him. As if any of us actually expect THAT to happen... not.
I admit to having a little bit of trouble figuring out how Tamm broke the law, if the law was broken, and if he turns out to be Deep Modem. Since what "Deep Modem" [hereafter known as "DM"] mostly did was ask pointed questions, and the Bushies haven't been exactly secretive about their desire to spy on anyone and everyone, or shy about mentioning their success at "Outsourcing" government functions. Whether or not squealing on the prime program to NYT is illegal, I doubt it. That's just me, though. I've been post-classified before, so what do I know?
At any rate, I should 'fess up on some things. Particularly things I found out the Hard Way about the Fourth Amendment to the US Constitution, and exactly how much it counts. Because I've seen a lot of knee-jerk responses to the thought of data-mining and fishing expeditions, and y'all seem not to know what's actually real on that level.
It happened in 1995 for me. Our son died ugly in 1992, and we had launched a desperate last-minute attempt to beat the Statute of Limitations on a malpractice lawsuit our erstwhile lawyers had let slide right up to the last 60 days before screwing us royally. We had to get all the medical records, hire the lawyer and private investigators, a medically licensed reviewer, and file all the papers to make sure we could get it in on time. Including extensions. We managed all of that, because we knew for a fact malpractice occurred, and all we needed was access to the means.
When time came for depositions, we were thankful to find that there was a 10-year limit on how far into our background they could dive. Our son was a clown, fire juggler, movie star and genuine celebrity with his own television show and gaggle of teenage groupies. For that ten years we were a family troupe of clowns, jugglers and entertainers. That's all he needed to be, in order for us to demonstrate that his death was a significant damage to us and our business.
Then we got a strange phone call from New York just as depositions were being scheduled, telling us that we were being listed as "expert witnesses" in a federal class-action lawsuit on behalf of more than 2,000 plaintiffs who were directly harmed by the accident at Three Mile Island nuclear plant in 1979. They told us we'd be subpoenaed if we refused to testify voluntarily, and a federal subpoena at that point in our malpractice suit threatened everything our son was and we were trying to establish (he was 8 when TMI melted down. Not responsible, not relevant, a serious distraction.)
After being asked rather pointedly in deposition about other subpoenas, I realized the Insurance Company lawyers had access to this situation and were really wanting to exploit it. I denied everything, (forgot!) and they couldn't get more specific (10-year limit). But I knew they'd do so at trial if they could, so went seriously looking for a way out. I FOIA'd the FBI for any and all information they had on us, on my brother (who'd been murdered by nukes in 1980 in New Mexico), etc. Since our testimony in 1985 to Congress and the NRC had been - to my understanding - post-classified, I wanted to see if there was ANYTHING our adversaries in my son's case could get to challenge us in the matter of his very untimely death of medical malpractice. For which it honestly didn't matter who WE were. All that mattered was who HE was.
I went back and forth with the FOIA guy at FBI headquarters for a year and a half. In the end, I was informed that NO information about any of us or anything that happened after TMI was available, to ANYBODY. That answered my question just fine - we could flat refuse compliance with federal subpoena, they couldn't force us to testify to what we'd freely told them back when there was something that could be done to mitigate the harm done - and was now classified. Then something even weirder happened...
The insurer for all 5 doctors involved in our suit had been the nation's largest malpractice insurer out of Baton Rouge, Louisiana, until it went bankrupt after principals left the country with $10 million in negotiable bond assets. It had been then turned over to an ex-governor of LA and his son, who looted another $10 million. At which point it was thrown into federal receivership, and orders were to quash ALL outstanding lawsuits. We, of course, not willing to get quashed...
The original accident that injured our son had occurred outside New Orleans, so our LA lawyer had hired an LA PI to do the investigation. Then that lawyer got in trouble by defending the wrong guy against a trumped-up murder charge and winning. Seems the feds (yes, DoJ) was doing one of its many investigations of the NOLA police department, in which this man - a NOLA policeman - was serving as informant. The feds got called off, left him hanging and Harry Connick charged him with murder. Harry was not happy in the least that our lawyer managed to get him off...
So he went after the lawyer. Got the Chief Justice of the LA Supreme Court to sign an unsworn warrant against him, then raided our lawyer's offices in the middle of the night, seizing all legal files. Including ours, with the PI investigation reports, videos, etc. in them. Just when we'd finally forced the court date we'd been seeking for years, upcoming in less than 6 months. On our fourth judge. No way we could put it off...
I tried to get the files back. No go. I got a copy of the ridiculous unsworn warrant. Nobody cared. I contacted the guy who signed the warrant. He didn't want to hear it. I contacted the Louisiana AG. He never replied. So I contacted the AG of Florida (where the suit was current), of NC (where we now live) and even Janet Reno. Their responses were so coordinated as to have been well planned ahead of time.
There is no right to not be searched, or have one's papers, effects and property seized, we were told in no uncertain terms. If you don't happen to be the target of the investigation, you have no rights. No matter how much we needed our legal files and PI investigation reports, they were "evidence" in a case against somebody else, so tough titty. We never had to be notified at all (so thank you it only took 120 days), nobody ever needed a legal warrant, our effects could be searched at will and held forever, go away and leave us all alone.
Specifically, we were informed that unless WE were the target, and were tried and convicted of a crime using illegally obtained evidence, and asserted the Fourth Amendment on appeal of that conviction, we have no rights. Period, end of story, don't call or write again.
So. How does this equate to what's happening right now with FISA, considering this was the Clinton administration and the USSC rulings were on file then? ...it means you have no rights unless YOU are the target of the investigation, unless YOU are convicted, and unless that conviction made use of illegally obtained evidence. And you have a lawyer that will bother to appeal, that is. Of course, if you're declared persona non grata [a.k.a. "enemy combatant"] before then, you're SOL as well.
This is the "Law of the Land" as it existed a decade ago, long before Bush launched his wars of stupid aggression. It's the "Law of the Land" now too. For all the hemming and hawing in Congressional cloakrooms and grandstanding on the floor, they know this. They all know it, it is the "Law of the Land" having abrogated Amendment #4 years and years ago. When nobody was looking. Too late to complain now.
Just thought I'd get that little bit of reality out of the way. Now, if you're interested, here are some great updates and interesting Wingnut takes on the issues at hand...
Avenging Angel's Kos Diary
Wingnut links:
The Strata-Sphere
Threat Level (with Freeper exerpt)
Weapons of Mass Discussion
Discerning Texan
NYT Editorial:
The Fear of Fear Itself
The DeepModem project could use more volunteers to track leads and organize files. Also legal help is requested, to deal with little technicalities like the ones I've just highlighted. Speak up in comments, offer your thoughts. And thanks!