I'd like to apologize to anyone I've offended or insulted in the debates about FISA. I've been reacting emotionally too much, and not stepping back to consider that, as a former criminal appellate attorney who argued constitutional issues regularly, my perspective on the Constitution is very different from from a lay citizen's. I couldn't understand why so many of you were so exercised over what was, to me, a commonplace piece of legislation, albeit one with which I disagree.
I took some time alone last night and put myself back in time, before my law practice, before law school, back to high school and college civics classes and my then-layperson's view of the Constitution. I realized that, back then, I'd have been running around with my hair on fire too.
Come with me over the fold, please, and I'll try to explain why - though I disagree with this FISA bill - I'm not all that exercised about it.
Most Americans have a very limited view of what the Constitution really is, or how it works (and doesn't) in real life. They know what they've been taught in a civics class - too much of which is necessarily cursory and idealized - and they probably haven't seen how that plays out in the real world. That is not a criticism. I have a very limited view of many things in life, because I haven't studied or practiced them. Unless we have some reason to get "into the weeds" on a topic, we usually don't.
But the Constitution is a topic I've gotten deeply "into the weeds on." As a criminal appellate attorney, I argued constitutional issues - search and seizure, self-incrimination, right to counsel, and the like - in court, with real cases and clients.
That and the legal history I learned in law school gave me a different perspective on the Constitution. We do in fact "compromise" on the Constitution, often, and we have from the birth of our republic. We do it formally (legislation and court decisions) but most of the compromises are informal: a cop has to make a decision, on the street, based on his training, experience, instincts, and the facts and circumstances he can see and hear.
So let's take a journey through some Fourth Amendment "compromises."
Charlie Cop is responding to a domestic disturbance call. He thinks he hears someone being hit, and screaming, inside the house. He has no warrant, but he's going to enter that house anyway, and the courts will uphold it if Charlie reasonably believed that someone inside had been harmed or was in imminent danger of being harmed. It's the emergency doctrine, and it's just one of the "compromises" we've made on the Fourth Amendment, balancing the right to be free of "unreasonable search and seizure" against issues of public safety.
As it happens, no one was being hit inside inside; the sounds of hitting and cries of pain were from a television movie. But once inside, Charlie sees a drug scale, cutting mirror, bags of cocaine, and a stack of money on the coffee table. Charlie can seize all of that, under the plain view doctrine, and it can be used as evidence, with no warrant.
First, though, Charlie arrests and handcuffs Stanley Suspect, and then goes through every room in the house, including the closets, anywhere a person could hide. Charlie needs no warrant to do this, because of the protective sweep doctrine which applies whenever an officer makes an arrest; he can search and secure the immediate area, both to disarm the suspect and to find and disarm any confederates, for his own safety and the safety of bystanders.
While there was no one actually screaming in pain - the emergency doctrine basis for the initial entry - Charlie finds Susie Suspect, Stanley's wife, hiding in the bedroom closet. Charlie orders her out and, as she exits the closet, Charlie sees her kick what appears to be a dark, metallic object under a pile of shoes. The protective sweep doctrine would not let him dig into the pile of shoes, as no one could hide there. But Charlie can and will dig around anyway, under the discarded items doctrine which allows an officer to search for objects if he sees a suspect try to hide or discard those objects.
Beneath the shoes, Charlie finds a gun and, beside it in a now-toppled-open shoebox, a gold chain with a locket and the driver's license of a missing 16-year-old girl. He can look in the shoebox, again, under the plain view doctrine, which applies to any items in plain view if the officer is otherwise legally allowed to be there. In this case, as Charlie was looking for the object the woman kicked away, that takes him into the shoebox.
So we've gone from entering the home because Charlie reasonably (but mistakenly!) thought someone was in imminent danger, to arresting Stanley on drug charges, to searching the house and closets for confederates, to searching a shoebox in the bedroom closet because Susan kicked something at it when Charlie found her hiding in the closet. The incident and the investigation escalated from domestic disturbance to drugs to homicide.
And all without a warrant, under Fourth Amendment "compromises" the courts have recognized and affirmed to protect public safety.
Did Charlie violate the Fourth Amendment, on the facts presented? No. The courts would uphold each of his decisions, even his reasonable but mistaken entry under the emergency doctrine.
Did Charlie do anything wrong? Again, I'd say no, because I think each of the Fourth Amendment "compromises" I presented here - the emergency, plain view, protective sweep, and discarded items doctrines for warrantless searches - are emminently reasonable.
And the Fourth Amendment protects us from "unreasonable search and seizure."
So for me, the argument that "we can't compromise on the Constitution" is simply false. The Constitution is a collection of compromises, and was from the time of its inception. (The "three-fifths of a man" for slaves, for example.) It was never intended to be rigidly interpreted or applied without exception: thus the word "unreasonable" in the Fourth Amendment. It is a living document, and we've always seen the need to balance rights against each other, as well as against public safety.
So while I think this FISA bill is bad law, and I suspect (and hope!) it will be overturned, I don't see it as different in essence from the Fourth Amendment "compromises" I described above. It is different in substance - I think it's unreasonable and bad law - but not different in essence. It's another Fourth Amendment "compromise" of the sort we have been making throughout our legal history.
And like many (though not all!) of those "compromises," the FISA bill is bad law, in my opinion. But attorneys see bad law a lot. That bad law exists, or is enacted, is not "the end of the Constitution" from an attorney's perspective. It's just another day at the office, something we see happen often. It's why the criminal defense bar exists.
So if I've sounded blase about FISA - given the impression I don't care about the Constutiton - that's not true. I care very deeply about it. That's why I went into criminal defense work after law school. I'm not at all blase. Like the Military Commissions Act of 2006, FISA shouldn't have been enacted and should be overturned upon first review. And as a member of the ACLU, I'll contribute to that effort in any way I can.
But I'm not all hair-a'fire about it. Not because I don't care, but because I've seen this happen so many times and I know, professionally, what must happen to stop it. While I no longer practice actively, I'm quite certain the ACLU and other groups have teams of capable, committed criminal defense lawyers working to protect our rights ... as criminal defense attorneys must do every day.
So to those at whom I've snapped, or simply offended, I apologize. I hope this makes my perspective a bit clearer.
UPDATE: I want to be clear here. I'm not saying my perspective - my choice to not be outraged - is the best perspective for anyone but me. Well, I hope the lawyers arguing the cases for the ACLU and other groups will set their outrage aside also. Outrage and careful legal reasoning don't co-exist well.
Yes, this FISA bill is outrageous. And if you're writing here - or to your congresscritters - you've every right to be outraged and express that. I certainly did in my calls and letters to my congresscritters.
But as I said, outrage and careful legal reasoning don't co-exist well. And what I've tried to do, in my diaries, is to illustrate and educate about the Constitution, the Fourth Amendment, and FISA. I've tried to use the same careful legal reasoning I'd have used in court, because that is my habit, training, and experience. I tried not to let myself get outraged, and what I tried to do in this diary was to apologize for not stepping back from that to understand and validate your reasonable outrage.
I don't mean that to be condescending. I'm not saying my perspective is better, superior, or even more useful, for everyone. It's what is most useful for me, for what I've been trying to do here. So if it seemed I was condescending, I apologize for that as well.