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Monday, January 02, 2006

Trust: You Have to Earn It, Every Day, Part I

I disagree with Pat Fitzgerald. There, I've said it. But before you work yourself into a lather, it's not over something he has done in the Traitorgate investigation.

I spent hours yesterday going over the tape from the Patriot Act debate (warning: video) in which Fitz and three other attorneys participated in John Calloway's Front and Center debate at the Pritzger Military Library, on the 24th of May, 2004.

The show is a great example of how reasonable minds may differ on issues as fundamental as civil rights and investigative powers, and I recommend it highly for those interested in some intelligent give and take on these issues. Truly, a well-done argument all around. While it doesn't cover every aspect of the Patriot Act that needs debate -- and frankly, that would take a 20-part series, at least -- it does cover several law enforcement and civil rights aspects.

Fitz mopped the floor with everyone, with the exception of some good points made by Coleen Connell, representing the ACLU, on the differences between FISA warrants and the secrecy of their subpoena power and the regular subpoena process which allows for opposition to document requests and the ability to move to quash a subpoena (or ask a judge to throw it out), and by Deborah Caldwell-Stone (for the American Library Assoc.) on gag order provisions for Patriot Act subpoenas via FISA, and the worry that there would, thus, not be adequate third-party supervision to prevent abuses. I can certainly see why his everyman approach would work well for a jury -- I want to go and have a beer with Fitz and talk about these issues further.

Fitzgerald made excellent points from a law enforcement perspective regarding two of the most practically applicable issues. First, he discussed how dismantling the wall between the FBI's anti-terrorism investigative unit and the criminal justice divisions in both the FBI and the DoJ had made a substantial difference in terms of information sharing without the bureaucratic bullshit, or even the outright prevention, that surrounded this issue in the past.

Fitz made this point brilliantly by using the Rowley mess with Moussaoui as a clear example of how previously an FBI investigator had to go through the legal folks in DC (and way too many layers of crap) to get a warrant that they can now get via a US Attorney or AUSA in the building across the street from their offices.

His second point was that a lot of the provisions equalize powers that law enforcement already had for other criminal cases, so terrorism investigations are handled the same way in terms of subpoena powers and other matters, and that if things are done according to the book, this brings more judicial supervision to a lot of these issues. This makes sense in terms of judicial economy if you are treating these sorts of prosecutions in equal terms as other ones, for purposes of motions or regular practice issues.

Essentially, Fitz argues that overall the Patriot Act has been a positive development for law enforcement and that he sees no real down side to it in terms of civil rights issues, assuming that the laws are obeyed and that the normal give and take between defense counsel and prosecutors occurs to assure balance. That's where I part company with our boy Fitz.

Sure, I know, he was appearing as a US Attorney, currently working for this Administration in Chicago. And he's currently investigating crimes that members of this Administration may have committed in outing Valerie Plame Wilson's covert identity. It's not as though he can just stand up and shout "These people are the most corrupt bunch of cretins I have seen in all my years as a prosecutor. And considering the smarmy types I've put away, that is saying something."

But I'm not working for that crew, so I'm calling bullshit on "trust the system" for a number of reasons. I'll detail those reasons in Part II...more to come.

(Graphics love to The Heretik.)