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If the DEA does it, it isn’t perjury

According to this Reuters exclusive entitled “U.S. directs agents to cover up program used to investigate Americans”, the US Drug Enforcement Administration has been running a secret program to cover up the fact that it has been receiving information from the National Security Agency that it has subsequently used in court.

Under this covert program, agents are instructed to fabricate plausible explanations of how the agency uncovered evidence through means that did not involve NSA intercept capabilities in order to hide the true source of the information.

Now, normally, under US common law, such coverups are considered a very, very bad violation of the rights of a defendant, who is entitled to learn the source of information used against them at trial so that they can rebut the evidence presented by the prosecution. Furthermore, under the laws of almost every civilized country, lying in court is considered a crime, to wit, perjury.

I suspect, however, that we will not see any investigations, let alone prosecutions, of government officials for what is clearly a crime. Indeed, I suspect that we are all so conditioned to the idea that government officials are now above the law that no one reading this would even expect such a prosecution.

There’s something rather sad about this state of affairs, isn’t there?

28 comments to If the DEA does it, it isn’t perjury

  • Clovis Sangrail

    I can’t say I expect a prosecution, but (naive as I obviously am) I expect some department to at least consider the possibility.
    I say this not entirely from faith in the US legal system but rather faith in the zeal of those who want to make a name for themselves.

  • Michael Jennings (London)

    One contributory thing here is the “War on drugs/terror/drink driving/cigarettes/kittens” mentality here is the idea that in a war, civil liberties do get trampled on for this greater good in this battle of great importance, of course. This is one of the many problems with referring to things that are not actually wars as wars.

  • PersonFromPorlock

    This is one of the many problems with referring to things that are not actually wars as wars.

    Clearly, then, it’s time to declare a ‘war on overweening government agencies’.

  • Steven R

    So we now have the Star Chamber in the form of FISA courts, our own Stasi collecting files on every citizen in the form of the NSA, and now secret police fabricating investigations after coming up with evidence they can’t get legally.

    Land of the Free, indeed.

  • So the NSA *is* spying on Americans. That puts paid to the “not doing anything illegal” argument.

  • Bruce

    PersonFromPorlock wrote “Clearly, then, it’s time to declare a ‘war on overweening government agencies”.

    That sounds like “Civil War”.

    I suspect that the “Administration” and its “Alphabet Agencies” are betting that the “peasants” will be so horrified at the thought of a SECOND Civil War that they will not push the issues to that eventuality.

    Ironically, perhaps, but unsurprisingly, a good many of the statists will have been raised in the swinging sixties and seventies, on screeds touting a “coming” Second American Revolution.

  • Surellin

    To quote Instapundit, “Tar. Feathers. Repeat as needed”. Although, admittedly, we’re getting past the tar-and-feathers territory with some of these newest allegations.

  • bradley13

    If (and it is a huge if) the general public ever becomes convinced that all this is unacceptable – the spying, the corruption, etc – the problems will solve themselves. Politicians want to be re-elected; allowing for some degree of personal corruption, they generally do what the public wants.

    Right now the public clearly doesn’t care about NSA spying – Snowdon is a traitor, when’s the next Nascar race? Most Americans couldn’t care less about out-of-control law enforcement – war on drugs, gays are sinners, throw ‘em all in jail and when’s the next evangelical revival? As long as that’s the way the majority thinks, nothing will change.

    Anyway, we’ve got bread-and-circuses, half the population gets a check from the government, who’s going to vote against their own interest? If a revolution comes, it’s not going to be because of rights, but because those government checks start bouncing.

  • Paul Marks

    If we are talking about basic law…….

    The Federal government’s war on booze was underpinned by a Constitutional Amendment (the 18th Amendment – repealed 80 year ago).

    What Constitutional Amendment gives the United States government the right to wage war on drug use?

    Silly me, sorry to ask such a “Horse and Buggy view of the Constitution” question.

  • Richard Thomas

    I think it’s time to stop looking back at the old constitution and start considering what form the next one should take. Probably in the UK too.

  • Paul Marks

    Richard – what is the point of writing a new Constitution if it is not enforced?

    And if you come up with a way of enforcing a Constitution why not enforce the old one?

    A new one will have new flaws – which will only be found out in practice (too late).

    Still I will play the game….

    The old Constitution bar the following words…..

    “and general welfare” (words that have been ripped from their context, as a the PURPOSE for following specific powers – turned into a “general welfare spending power”).

    And “regulate interstate commerce” (again these words have been ripped from their context – where they mean ensure free trade between the States).

    Just get rid of the above six words.

  • John

    Maybe we could add “We really mean it” or “this means you” to the end of the 9th and 10th amendments….

  • Paul Marks

    John – as you may know…..

    They were intended to be the First and Second Amendments (James Madison messed up the order).

    Perhaps if they had been the First and Second Amendments…..

    As for paranoid Constitution writing……

    Louisiana (because of the Roman law tradition – and local history) and the Constitution of Alabama, spring to mind.

    John Adams said that the United States Constitution was written for a “moral and religious people” and would not suit any other sort of people.

    I like John Adams – but that is the wrong attitude (such people need no Constitution).

    The correct attitude is “politicians (and other such) tend to be scumbags – how are they going to try and twist these words……”

    Hence the need to be “paranoid” when writing a Constitution.

  • Laird

    Paul, the way to “enforce” the Constitution is to explicitly give the states (which, after all, were its creators and the direct source of the federal government’s powers) an explicit veto over any and all federal actions (i.e., a formal power of nullification), and to back that up with an explicit recognition of each state’s right to unilaterally withdraw from the Union. Simples.

  • Steven R

    The Federal government’s war on booze was underpinned by a Constitutional Amendment (the 18th Amendment – repealed 80 year ago).

    What Constitutional Amendment gives the United States government the right to wage war on drug use?

    The War on Drugs didn’t need any amendment. The courts just said the government can do pretty much anything it wants, provided it makes some tenuous argument that said action involves the Commerce, Taxation, Spending,or General Welfare clauses. Just twist, turn, stretch, squint, fold, cut, or spindle logical arguments so that whatever it takes to justify a law as Constitutional and it’s a done deal. The courts will go with it.

    I’m convinced that centuries from now when historians honestly look at the collapse of the United States, the chief cause will not be welfare leeches, or political corruption, or a lapdog press, or any -ism, but will be identified as the courts not doing their job as an independent body and instead acting as a virtual rubber stamp for whatever Congress or the President wants. It’s bad enough that the Executive and Legislative branches are often in collusion, but the courts have pretty much stopped being a check and balance against the other two branches.

  • Richard Thomas

    Paul, my thought is that the current (or, to be truthful, past) constitution did reasonably well for a while but ultimately failed and things are quite likely past the point of no return. Given how it is likely to end, some new constitution is likely to emerge (almost for sure we won’t just prop up the new one again). Will it be able to do any better? Hard to tell (likely it will be some socialist novel-length nightmare but one lives in hope) but it does no harm to consider where improvements might be made.

    I think step 1 would likely be to remove voting rights from anyone who depends on government as a source of income. Bottom to top and sideways through government funded private businesses.

    So much also seems to rest on the assumption that government is fairly small. The constitution was pretty good at limiting the power of small government but as it grew became as feasible as trying to control a bear by use of a pointy stick.

    Though I am willing to entertain the idea that there is no real solution. Still, one might hope to steer the sled as it races down hill somewhat.

  • Richard Thomas

    One other big step would be for individuals not to be subject to federal taxes. It’s a federation of states so the states should fund the federal government (via whatever method they see fit). Also go back to senators being elected by the state legislatures, not by popular vote.

  • Midwesterner

    Richard,

    Repealing the 16th and 17th amendments would solve almost all of the other problems as well in fairly short order. For one example, a Senate appointed by state governments would stipulate judicial, etc appointments who adhere to the 9th (probably) and 10th (emphatically).

    The Federal Reserve System should also have required an amendment as it is blatantly unconstitutional. However, in the shadow of the 16th and 17th amendments, it evaded effective and ongoing challenges.

    It is not a coincidence that data of all kinds after averaging horizontal trend lines since the ratification, went exponential around 1913.

  • Richard Thomas

    Mid: I’m aware of those trends. Arguably 1913 was the end of the legally constituted US government.

  • Laird

    I agree 100% with Midwesterner’s and Richard Thomas’ last comments. 1913 was the beginning of the end, with the ratification of both the 16th and 17th Amendments and the election of Woodrow Wilson. A year which will live in infamy.

  • Perry Metzger (New York, USA)

    Sayeth the Laird: “I agree 100% with Midwesterner’s and Richard Thomas’ last comments. 1913 was the beginning of the end, with the ratification of both the 16th and 17th Amendments and the election of Woodrow Wilson. A year which will live in infamy.” — perhaps true, though it is difficult to conduct the experiment that definitively says what year was “the end” or not.

    I used to obsess about such questions myself, but then I realized that it didn’t matter much. Lysander Spooner said it best, I think, at the end of “No Treason #6, The Constitution of No Authority”:

    But whether the Constitution really be one thing, or another, this much is certain — that it has either authorized such a government as we have had, or has been powerless to prevent it. In either case, it is unfit to exist.

  • Paul Marks

    Richard – I see what you mean.

    But I would still like to see more thought about the ENFORCEMENT of a Constitution.

    Perhaps a JURY not a “Supreme Court” of (government appointed) judges.

  • Paul Marks

    Of course Steven has already (de facto) made the point that the experiment of entrusting a Constitution to appointed judges has failed.

    It is no accident that the establishment (such as the Economist magazine) detest the idea of the free (and open) election of judges (rather than appointment or rigged “elections” with specially chosen candidates).

    The free and open election of judges is the alternative to entrusting Constitutions to randomly chosen JURIES (which also MIGHT work).

  • Paul Marks

    Yes Laird – slavery ended long ago.

    The argument that secession was NOT freedom (because it was just a cover for preserving slavery) died with slavery.

    If a State has no right of EXIT from a Federation – then it is not a free Federation it is an Empire.

    States (or Swiss Cantons) must have the right to leave the Union.

  • Perry Metzger (New York, USA)

    Paul Marks scripsit: “The free and open election of judges is the alternative to entrusting Constitutions to randomly chosen JURIES (which also MIGHT work).”

    In much of the United States, judges are already elected. I know of no study that shows that such judges are more likely to respect the constitution — indeed, one’s instinct is that they are forced to pander even more to popular desires.

    I’ll close with a quotation I was introduced to long ago by David Friedman…

    “In nothing did the founders of this country so demonstrate their essential naïveté than in attempting to constrain government from all of its favorite abuses, and entrusting the enforcement of these protections to judges; that is to say, men who had been lawyers; that is to say, men professionally trained in finding plausible excuses for dishonest and dishonorable acts.” — H.L. Mencken

  • Paul Marks

    Perry M.

    You seem to have missed the bit where I said FREELY elected – not with a rigged choice of candidates (and so on).

    Still you may well be correct.

    Better go to juries then.

  • Laird

    A fine Spooner quote, Perry M. (But then, there are lots of fine Spooner quotes, aren’t there?)

    Paul, I understand your point, but having lived in a number of jurisdictions with elected judges I can tell you that it is not a good system. The only people who will put up with the indignities of a political campaign are precisely those whom you do not want to be judges. (You certainly never get seasoned attorneys with no other political ambitions seeking to end their careers with a stint of true public service, which is the ideal judge.) And of course, they all come from the trial lawyer ranks, which not only means that they are predisposed to vexatious and unmeritorious litigation, and that they tend to favor their old cronies, but that the only people who contribute to their campaigns are other trial lawyers. So they start out bought and paid for and of low quality. Then, add in the fact that the general public hasn’t a clue about what constitutes a “good” judge, and therefore has absolutely no basis for casting a vote, and you have a sure-fire recipe for cronyism and insider dealing.

    Appointed judges can be just as bad, of course, especially if the trial bar controls the selection process (which is frequently the case), but at least that gives the possibility of getting a few competent and conscientious judges now and then. There is no right answer, but elected judges isn’t the panacea you seem to think it is.

  • Paul Marks

    Laird – good point about the Bar Associations, where they control the selection of judges all hope is lost.

    Back to JURIES it is then.

    Constitutional juries – for deciding Constitutional questions.