Thursday, May 25, 2006

Gonzales Grasps At Legal Straws Again

The latest example of the dodgy lawyering upon which the Bush administration bases its most questionable policies is being disputed by experts in jurisprudence.

Civil liberties lawyers yesterday questioned the legal basis that Attorney General Alberto R. Gonzales used Tuesday to justify the constitutionality of collecting domestic telephone records as part of the Bush administration's anti-terrorism program.

While not confirming a USA Today report May 11 saying the National Security Agency has been collecting phone-call records of millions of Americans, Gonzales said such an activity would not require a court warrant under a 1979 Supreme Court ruling because it involved obtaining "business records." Under the 27-year-old court ruling in
Smith v. Maryland , "those kinds of records do not enjoy Fourth Amendment protection," Gonzales said. "There is no reasonable expectation of privacy in those kinds of records," he added.

Noting that Congress in 1986 passed the Electronic Communications Privacy Act in reaction to the Smith v. Maryland ruling to require court orders before turning over call records to the government, G. Jack King Jr. of the National Association of Criminal Defense Lawyers said Gonzales is correct in saying "the administration isn't violating the Fourth Amendment" but "he's failing to acknowledge that it is breaking" the 1986 law, which requires a court order "with a few very narrow exceptions."

If there is any reason for someone who claims to be a lawyer--and who is the nation's top law enforcement officer--to cite a law that is being violated as being the legal justification for the lawfulness of anything, such logic is beyond ordinary comprehension.

King noted that the USA Patriot Act modified the law to permit counterintelligence access "to telephone toll and transactional records" to allow specific targeting of "a person or entity" by the FBI if the director certifies in writing to the service provider that a customer's information is relevant to an "authorized" terrorism or counterintelligence investigation.

Gonzales must consider the American people to be an "entity" under the provisions of this legislation. Fair enough.

The bit about this "entity" being "relevant to an authorized terrorism or counterintelligence investigation" is where he will not find himself on solid legal ground.

2 Comments:

Blogger Meatball One said...

Again, slick

5/25/2006 5:21 PM  
Blogger Effwit said...

Mange tusen takk.

5/25/2006 5:34 PM  

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