Poisoned Fruit, Interstate Commerce, and so-called ‘Domestic Spying’
by Christian Y. Cardall
This week the Bush administration executes a blitz aimed at turning a political liability into a club with which to beat those wimpy Democrats over the head yet again on issues of national security. If you are an active Mormon, not only will you be a patriot; statistically you’re overwhelmingly likely to also be a political conservative, who will therefore want to support this righteous cause. The playbook: (1) Explain the ‘fruit of the poisoned tree’ problem when liberals whine that we already have the FISA court, and (2) Insist on the adjective ‘transnational’ instead of ‘domestic,’ and for good measure throw an analogy with the commerce clause in their face.
You see, Bush’s mere redefinition from “domestic spying” to “terrorist surveillance”—which may be sufficiently effective with the public at large—will not cut it with your smarty-pants friends around the water cooler. In the comfortable complacency that goes with taking one of the great blessings of this free nation for granted—abundant supplies of chilled water in workplaces everywhere—your American-self-loathing friends will dismiss the manifest imperative to ‘get the terrorists’ with a casual (and limp-wristed) wave of the hand, and hold forth instead with high-minded indignation, using eloquent (but nasal-toned) phrases like ‘infringing our liberties.’
You can’t compete with their fancy words, but you know they’re wrong, and that if it wouldn't mean losing your job you could take a page from the CIA’s playbook and get them to admit their self-deceptive errors with a modicum of waterboarding. (How do you like that chilled water now?! Ready for some domestic survellience yet? No? Have some more then!)
Since this option is sadly unavailable, read on and prepare yourself to administer crushing blows on the amateur intellectual battlefield, armed with armchair legal arguments. Depending on how much actual legal knowledge your pencil-necked friends have, you will either impress them greatly or embarrass yourself horribly. But at least you’ll have something to say.
The first argument in Bush’s favor has to do with why even the FISA allowance for 72-hour backdated warrants in the case of emergencies are insufficient. Having watched Law and Order episodes since you were a babe on your mother’s knee, you know that such warrants still must be obtained without any ‘fruit of the poisoned tree.’ That is to say, suppose the only thing I have on American citizen Abu is an intercepted international call—selected only on the basis of automated data mining—saying “Abu, Osama says you should execute the plan next week.” I could not use this evidence to justify a back-dated warrant to obtain this same evidence. And yet it seems like a reasonable piece of evidence to obtain and act upon.
The second point is that a key legal element seems to be the international nature of the communications. Seize on this as a conservative revenge on the commerce clause. (School desegregation was of course a good thing, but just to show the slenderness of the legal threads upon which such weighty conclusions are hung, I am told that Brown v. Board of Education relied on an obscure footnote in a case on interstate shipments of milk.) Just as the commerce clause gives the federal government the right to regulate essentially anything—from abortion to guns—with the most remote or tangential interstate connection, so transactions traversing the nation’s borders give the Commander-in-Chief considerable leeway in making use of them for national defense. So there!
Go forth, conservatives, and spread the good word: not only is Bush pushing the religious right’s agenda of moral purity we Mormons crave, he’s kicking terrorist arse wherever he finds it. Not only does he assure us that “I'm mindful of your civil liberties and so I had all kinds of lawyers review the process”—he’s got quality legal backing from the Spinozist as well.