One More Step Towards Fascism

I want to call your attention to an Associated Press article in today's Boston Globe: Medical, law calls possibly tapped: Officials say data court admissible.

Here's the background. Congress submitted some questions about the administration's warrantless wiretapping program to the Department of Justice, and the answers were released Friday night. (I'm still looking for the source document online, rather than just newspaper articles about it. If you find it, let me know.) Some of the questions concerned whether the program violates attorney/client privileges or medical privacy. The AP/Globe article quotes a Justice Department answer as saying:

Although the program does not specifically target the communications of attorneys or physicians, calls involving such persons would not be categorically excluded from interception.

So far, not unexpected, and nothing to be too alarmed about. If you have a tap on somebody, you'll hear all their calls. It's not surprising that you'd hear calls they make to their lawyer or doctor. But here's the punch line: The Department of Justice believes that they can use such information in court:

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.

Now, before getting to the conclusion of this statement, let's not skip over the fact that its premises are baldfaced lies: The Supreme Court has ruled that it's not a violation of the Fourth Amendment to tap agents of foreign governments without a warrant, and the administration has (entirely on its own) stretched that interpretation to allow "collecting foreign intelligence information." The first interpretation allows tapping James Bond; the second allows tapping anybody we think James Bond might have talked to. The administration has absolutely no reason to believe that this is legal. Consequently, the Terrorist Surveillance Program is not lawful -- the only reason a court hasn't thrown it out is that (since the program is secret) the victims can't prove that they are victims and can't establish that they have standing to sue.

On to the conclusion of the statement: "there appears to be no legal barrier against introducing this evidence in a criminal prosecution." In other words, the Justice Department no longer believes in attorney/client privilege.

Suppose, for example, that your lawyer has another client who is suspected of terrorism. Now your lawyer's phone is tapped. There's no constitutional basis for doing this, because the government has no probable cause to believe your lawyer is a terrorist, but no matter -- they do it because they can and because no one will stop them. You call your lawyer and discuss your defense of some offense unrelated to his alleged terrorist client. The Justice Department believes they can use that conversation against you in court.

Now, as the courts are currently constituted, that claim would never stand up. But let's not be too complacent about that. All we can conclude from this fact is that someday there will be a constitutional crisis between the administration and the judiciary. Eventually, the Supreme Court will tell them that they can't do something they really want to do.

So far, the administration and the Court have dodged this collision. The Court has found reasons to delay ruling on (for example) Jose Padilla's detention as an enemy combatant, and the administration has interpreted such rebukes as the Court has given in such a way as to be meaningless. (The Court found, for example, that the Guantanamo detainees have the right to file a habeas corpus suit. The administration now accepts that they can do so, but is arguing in court that the detainees have no rights that such a suit can enforce. They hold, in other words, that the Supreme Court has mandated an entirely empty ritual.) This dance can't go on forever, and probably can't even go on until President Bush leaves office in 2009 (assuming that he agrees to obey that provision of the Constitution).

What will happen then? Under previous administrations, I would have been confident that the executive branch would back down and submit to the laws as passed by Congress and interpreted by the courts. But this administration is in many relevant respects very different from all previous American administrations. I don't think anyone can say with confidence what they will do.