Unreasonable searches

It has been interesting to watch the reactions of pundits and politicans to the news that the government has been ignoring its obligation to get warrants before wiretapping Americans' phone and e-mail conversations. Many of them, particularly Democrats, profess to be mystified by the government's failure to do the pro forma paperwork required to get a secret court to wield the rubber stamp. They point out that the Foreign Intelligence Surveillance Act makes it trivial to obtain wiretapping warrants, permits retroactive warrants, does not require the targets to be named, and legitimizes very sketchy descriptions of the rationales for the wiretaps.

You would think that someone would point out that the FISA itself is patently unconstitutional, a disgrace to American jurisprudence and a proof of Congressional cowardice and folly. But apparently only the last foot of the slippery slope is dangerous.

Another depressing aspect of the news story is that it was submitted to the editors of the New York Times before the 2004 election. Instead of reporting this atrocious, large-scale violation of the civil rights of Americans, the editors chose to sit on the story for more than a year, finally releasing it because they found out that it will appear in a book that will be published next month. What is this, about their seventh major lapse of editorial judgement this year?

I'll also watch with interest as federal courts and prosecutors try to deal with the flood of appeals from people convicted of terrorism, or indeed of any federal crime, since the NSA started sweeping up everything without getting warrants. If the government failed to reveal those wiretaps during discoverly, and the accused happened to make any phone calls or send any e-mails that were picked up, I wouldn't be surprised to see hard-won convictions overturned.