Monday, October 26, 2009

Just in case

At times, my meaning can be obscured by the volume, so:

I am sure my goal is not clear, so let me place it here: raise the level of the debate from over any specific legislation up to a call to act to save our Republic itself.

2009 appears like it will close with a legislative victory on health care and that auger well for more legislative victories to come, but we know these things to be true:

- 2010 is an election year;

- Republicans are addicted to running on a meme of, "Democrats are traitors".

What better way to launch into an election year with a call to restore our Republic? Why cannot Democrats wrap themselves in the Constitution and make the simple case that the USA PATRIOT Act needs to be repealed as it is un-Constitutional. Furthermore, why should not Democrats turn the tables and reveal the hypocrisy that underpins FISA itself: the notion that communication can be viewed by agents of our government - merely because it is electronic as opposed to paper - is insulting to our Constitution and completely unnecessary to our security.

Think about it: the original FISA legislation is predicated on the notion that one branch of our government is absolutely convinced that somebody is about to do something extraordinarily dangerous to the lives of Americans and the order of our society, so they need to surreptitiously surveil this somebody. The Constitution absolutely considers this case.

The Judiciary is also a branch of our government. If the left hand cannot convince the right hand that the stove is hot, then maybe the stove is not hot. Access to Judges or time to wait before Judges can rule is naught but a worse case scenario used to define an entire solution - but the original FISA approach ignores the very technology that can provide a simple solution. Imagine that: the complaint is that technology is "different now" and so the old rules "no longer apply" and that "the Constitution is not a suicide pact"; these are all memes trotted out to obscure people from one simple fact: the government has access to and use of the most sophisticated technology on the planet. In most cases, the use of this technology is limited to the Executive branch, which then allows them to snow technology-inept judges with scary stories.

Today - and for many years now - we have 911 lines staffed 24 hours a day, seven days a week; it is more than plausible to see how we could construct a hotline to access judges at any time and at a moment's notice. With existing technology, we can set up an instantaneous online conference call, with video recording and audio recording as well. A shared workspace can be put up to allow the Judge to see just what the agent of the Executive in need of a warrant is seeing and this workspace - and the edits made to it by both the Judge and the Agent - can be recorded as well. Heck, if we need to ensure that an on-call attorney is there to represent the interests of the person (perhaps even anonymously) who owns the property to be searched, that can be accommodated with just one more line added to the bridge.

This is America; surely we have a surfeit of lawyers to fill these roles and all of them easily can be outfitted with proper technology - phones, computers, PDA - to enable them to complete their tasks.

You want a search, get a warrant. If you cannot convince an "unelected judge" of the necessity for your warrant, then your information is not as good as you think.

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