Jail time for those who violate the Constitution
I’m thinking about the NSA wiretapping, which really seems to me to be the most important issue that has yet appeared within my lifetime. It may well define our generation.
I’m wondering how to address it. Suppose we get standing somehow — maybe because Schumer’s bill passes. (In turn, that will only happen if Democrats take the House and Senate in November. A guy can dream.) We go before the Court. The Court rules that the NSA wiretapping is unconstitutional, as it almost certainly is. No sham “compromises” appear, retroactively declaring a clear Fourth Amendment violation legal.
Fantasy hereby stipulated, the natural question comes up: so what? The Bush administration has declared more or less openly that it will break the law whether or not Congress protests. So if the Court merely said, “Stop this wiretapping,” it seems to me that we wouldn’t really get anywhere.
So: is it possible to put people in jail for violating the Constitution? Could we put a large number of NSA employees in jail? Is there any criminal statute that makes their wiretapping punishable with jail time? How about civil penalties? Could we fine NSA employees — specifically the head of the agency, perhaps — for every day that they continue the wiretapping program?
I’m just dreaming here, but I’m trying to dream within the confines of legal possibility. Can anyone chime in with some thoughts on what punishments are possible?
Not a bad idea…too bad the fascist pigs in the Bush regime would probably shoot anyone trying to do this.
Comment by Dan — April 9, 2006 @ 9:04 pm
Sure, there are civil and criminal causes of action that can be brought against officials who violate the Constitution. 42 U.S.C. § 1983 is, in fact, entitled “Civil action for deprivation of rights.” 18 U.S.C. § 242 is the analogous federal criminal statute.
There are many obstacles to pursuing these sorts of claims–absolute immunity, qualified immunity, sovereign immunity, abstention, etc.. You’d have to take a whole course just to start to understand the procedural issues involved.
In short, the way the Fourth Amendment has been construed to apply is primarily through the exclusionary rule and the related fruit-of-the-poisoned (or poisonous) tree doctrine. There has been much debate about other methods of enforcement, but that’s the state of the law today.
Comment by Adam Rosi-Kessel — April 9, 2006 @ 11:13 pm
greg palast suggests that the RICO laws are the best approach to getting convictions and removing bush from office:
http://www.buzzflash.com/contributors/06/04/con06129.html
Comment by edward — April 12, 2006 @ 1:39 am
it’s the relatively “petty” crimes that will bring this administration down, a la “second-rate burglary,” and not broad and subjective constituional issues. that’s why i think palast is on the money.
Comment by edward — April 13, 2006 @ 1:18 am
you think its fair for the us gov to wire tap and a privat ecitizen cant to prove his innocense?
Comment by geo kal — April 13, 2006 @ 1:18 am