Saturday, March 18, 2006

This Section Intentionally Left Blank

I am a health law attorney, which means most of my practice is focused on corporate law in the field of health care. In other words, I'm basically a business lawyer for physicians. Not surprisingly, I do a lot of contract review and drafting.

The more I read about the issue of warrantless spying, I have this funny thought that keeps popping into my mind. I'm sure it's the warped humor part of my personality coming through.

That is, during the process of working through an contract, counsel for the parties often end up drafting and revising the document to accommodate the various issues that have been negotiated. This process continues for several versions, until all of the terms are agreed to by the parties and the contract is finalized. At this point, the document is put into final form to be signed by the parties. Sometimes during the negotiations, a whole section or paragraph of the agreement is deleted. When this happens, either the remaining sections are renumbered or the section is deleted, but the number of the Section remains, with the phrase "This Section intentionally left blank" inserted. This latter method avoids problems with having to change references to the Sections in the Agreement, when the paragraph numbers change.

It is this visual that strikes me with the latest assault on the Constitution. I wonder if we will re-number the Amendments to the Constitution or just insert "Intentionally Left Blank" when we eliminate the 4th Amendment.

The latest iteration on the warrantless spying story is about to be published in the upcoming US News & World Report. It will apparently discuss the Bush Administration plan to conduct warrantless seizures of homes and offices of suspected terrorists, in addition to the warrantless surveillance that we already know has occurred.

During an interview on Countdown (via Crooks and Liars), George Washington Law School Professor, Jonathan Turley said: "what that would constitute is to effectively remove the 4th Amendment from the U.S. Constitution."

Turley further cautions:

This is something to be very concerned about. These are not trivial matters. We've seen a sort of broad-based assault on basic Constitutional rights in our country since 9/11. We have a President who ordered electronic surveillance by the NSA without warrants in something that constitutes a federal crime. Congress isn't even holding serious hearings on that. So we have a system that has checks & balances but none of them seem to be working. At the same time, as we noted earlier, we have an attack on the Judiciary itself, all of this should present a picture of concern for any American.
The Countdown Transcript is at this Daily Kos post. Another Daily Kos post, Gutting the Fourth Amendment, has a partial transcript of Gonzales' testimony before the Senate Judiciary Committee, in which he declines to respond to a question whether any governmental searches of homes or offices had occurred since 9/11.

Turley is correct, these are not trivial matters. And this is not Trivial Pursuit. Are you concerned yet?

UPDATE: The US News & World Report article, The White House says spying on terrorism suspects without court approval is OK. What about physical searches?, is now on-line. Based upon the article, it is unclear whether physical searches did in fact occur. The veil of secrecy prevents certainty. However, the tenor of the piece suggests that they may well have.

The other interesting point mentioned in the article is that the Administration basically acknowledged the illegality of the searches conducted without a FISA warrant. That is, the FBI was told that if the source of the information obtained without prior authorization was requested by a court, the case was to be dropped. Why do that if it was appropriate in the first place? Right. You wouldn't.

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