I was ranting at a right-winger who posted (off topic) in the ANWAR thread, but I'd like to thank
him, becuase it made me realize another problem with warrantless spying: It produces legally useless evidence.
Flip...
I'm no lawyer, but I'm pretty sure just about
every criminal court judge would throw out any evidence obtained by authorities without a warrant. So how could they prosecute any terrorists caught by means of this domestic spying program?
Picture it, a US citizen decides to join Al Qaeda, and work as an operative from US soil. He's working towards building bombs, or maybe he just gathers info so other bombers can strike a target better, whatever. So the NSA wiretaps him without a warrant, confirms what he's up to. So they have the FBI arrest him. Maybe they're hoping he'll resist and get shot/killed during arrest, but that would be stupid because then they couldn't torture interrogate him. Assume he surrenders peacefully and they don't just execute him on the spot (an assumption I'm less and less willing to make these days).
So now what? Unless they really do have an official policy of shipping him off to eastern-europe for indefinite incarceration without trial, they have to put him in front of a judge and grant him a lawyer, who will ask: "Your honour, all the evidence against my client was obtained without a warrant and should be dismissed, and since the state has no evidence against my client, so should the charges." On what grounds could any judge refuse this request? Judges need law to work from and this "the constitution empowers me because my lawyers say so" shit may sell to the freepers, but judges need steadier footing to rule on.
Is this scenario so difficult to imagine? I know the Bush administration argues that constitutional rights do not apply to non-US citizens on US soil (a frightening thought for this frequent visitor, should I ever encounter legal troubles while on US soil) - but there have already been US citizens involved in Al Qaeda. So by spying without a warrant, they're actually jeapordizing their chances of legally prosecuting terrorists caught by this.
The last scenario that occurs to me is that they're planning on having the courts rule in favour that such evidence is admissible, probably by a 5-4 Supreme Court ruling courtesy of our friend Mr. Alito. That's just tinfoil hat stuff at this point, but it stikes me that any legal experts who Ok'd this program should have had to consider not just the legality of the program itself, but the legal utility of any evidence obtained under this program.
On that note, I hope the memos analyzing this program's legal aspects do become public, because I'd love to know what the Administration plans to do should they ever actually try to, you know, prosecute someone for terrorism.