Gadfly is Marty Aussenberg, a columnist for the weekly Memphis Flyer. Marty is a former SEC enforcement official, currently in private law practice in Memphis, Tennessee. (A full bio is below the fold.) This is a BooMan original piece.

In the wake of the though-provoking piece in yesterday’s New York Times, and two excellent pieces providing further analysis, SusanHu’s and ReddHedd’s, the question becomes, so what if Bush’s violations of FISA result in terrorists getting off on a “technicality?”

The NYT’s piece foreshadows the likelihood that the warrantless surveillance by Bush will result in suppression motions (i.e., motions to exclude evidence tainted by the illegal surveillance), if not outright motions to dismiss prosecutions, to the extent they may be based on the “fruit of the poisonous tree,” a legal doctrine that says evidence obtained as a result of unlawful law enforcement behavior cannot be used to prosecute the targets of that evidence. The motions challenging prosecutions of “terrorists,” have already begun. Yahoo News. The unfortunate fact, though, is that even if Bush’s conduct results in the dismissal of terrorism prosecutions, the public is unlikely to ever know about it, or perhaps even worse, care.

First, any evidence that is secured from the super-secret NSA surveillance activities is likely to be presented in a closed proceeding. That is, the prosecutors are likely to claim that the information, to the extent it bears on the methods and manner of its collection, and therefore on the catch-all excuse of “national security,” must be presented “in camera” (a legalism meaning “for the judge’s eyes only”), or “ex parte” (without the presence of both parties). The legal framework for such secrecy is provided by the Classified Information Procedures Act and the Federal Rules of Criminal Procedure, specifically Rule 16.

An overlay on this official secrecy in judicial proceedings is the increasing use in the judiciary of “unpublished opinions.” There is no requirement that court orders, memoranda or opinions be published, and while we believe, as a society, that all governmental functions (including those encompassed by the judiciary) are carried out in public (though the unprecedented secrecy of the Bush administration should belie this belief), the fact is that a significant percentage of what goes on in the courtrooms of this country never sees the light of day. Indeed, the courts retain the discretion to place proceedings (including documents, transcripts and the like), “under seal.” The discretion to do so is virtually unfettered, especially given that the parties to such “under seal” proceedings have either requested such protection or don’t have any incentive to challenge it, as would, say, proponents of the public’s right to know who may not have standing to challenge court secrecy. And, to make matters worse, the rules of many state and federal appellate courts provide that judges may issue “unpublished” opinions which are then prohibited from being cited as precedent in other cases, even in those same courts. (Stare Decisis – PDF)
Thus, we may never know whether any prosecutions are poisoned by Bush’s extra-legal surveillance program.

… continued below …

But perhaps just as importantly, what will public reaction be if accused terrorists get off the hook because courts have found they were the victims of this administration’s unlawful surveillance methods. It is well to remember that the public doesn’t have much tolerance for releasing accused criminals on “technicalities.” Perhaps the most famous “technicality” enacted in the judicial history of this country was the case of Miranda v. Arizona. That case interpreted the Fifth Amendment to the U.S. Constitution as requiring that suspects be given certain warnings when taken into police custody, and mandating that confessions obtained in violation of the procedures it required be excluded from the evidence introduced against a criminal defendant.

The case was a cause célèbre for conservatives when it was decided, and even though it has remained in force for nearly 40 years, even surviving a challenge as recently as 2000 in which a statute enacted by Congress to water down Miranda was stricken down as unconstitutional, it still resonates with the public as a stricture on law enforcement which allows guilty people to go free on a “technicality.” One example of that attitude is the following:

I have no way of knowing whether the man on trial was guilty or innocent. I assumed he is guilty, because his lawyer used a legal technicality to get him off, rather than invoke a lack of real evidence.

That, I suspect, is how the public will perceive any dismissals of criminal cases because of the President’s end-run around FISA. The Bush administration will be able to color the dismissal of any prosecutions as the product of “activist” judges who don’t understand or appreciate the significance of the President’s “war on terrorism,” and a public which has been credulous enough to allow a variety of post-9/11 actions by this administration to effectively go unchallenged (i.e., the “Patriot” Act) will be placated. And, in the process, we will all be forced to eat from Bush’s poisonous tree.


Mr. Aussenberg is an attorney practicing in his own firm in Memphis, Tennessee. He began his career in the private practice of law in Memphis after relocating from Washington, D.C., where he spent five years at the Securities and Exchange Commission as a Special Counsel and Trial Attorney in its Enforcement Division, during which time he handled or supervised the investigation and litigation of several significant cases involving insider trading, market manipulation, and management fraud. Prior to his stint at the S.E.C., he was an Assistant Attorney General with the Pennsylvania Department of Banking in Philadelphia and was the Attorney-In-Charge of Litigation for the Pennsylvania Securities Commission, where, in addition to representing that agency in numerous state trial and appellate courts, he successfully prosecuted the first case of criminal securities fraud in the state’s history.

Mr. Aussenberg’s private practice has focused primarily on investment, financial, corporate and business counseling, litigation and arbitration and regulatory proceedings. He has represented individual, institutional and governmental investors, as well as brokerage firms and individual brokers, in securities and commodities-related matters, S.E.C., NASD and state securities regulatory proceedings, and has represented parties in shareholder derivative, class action and multi-district litigation, as well as defending parties in securities, commodities, and other “white-collar” criminal cases.

Mr. Aussenberg received his J.D. degree from the University of Pittsburgh School of Law, and his B.A. degree in Honors Political Science from the University of Pittsburgh. Immediately following law school, he served as a Reginald Heber Smith Community Lawyer Fellow with the Delaware County Legal Assistance Association in Chester, Pennsylvania.

He is admitted to practice in Tennessee, Pennsylvania and the District of Columbia, before the United States Supreme Court, the Third and Sixth Circuit Courts of Appeals, and the United States Tax Court, as well as federal district courts in Tennessee, Arkansas, Mississippi and Louisiana. He is an arbitrator for the NASD, New York Stock Exchange and American Arbitration Association, has published articles (“Stockbroker Fraud: This Kind of Churning Doesn’t Make Butter”, Journal of the Tennessee Society of C.P.A.’s,; Newsletter of the Arkansas Society of C.P.A.’s; Hoosier Banker (Indiana Bankers Association), and been a featured speaker on a variety of topics at seminars in the United States and Canada, including: Municipal Treasurers Association of the United States and Canada, Ottawa, Canada; Government Finance Officers Association; National Institute of Municipal Law Officers, Washington, D.C. ; Tennessee Society of Certified Public Accountants, Memphis, TN; Tennessee Association of Public Accountants, Memphis, TN (1993)

Mr. Aussenberg has two children, a daughter who is a graduate of Columbia University and holds a Masters in Public Health from Johns Hopkins University and is currently a student at the University of Pittsburgh School of Law, and a son who is a graduate of Brown University and is working with a conservation organization in Marin County, California while he decides what to do with the rest of his life.

Mr. Aussenberg is an avid golfer whose only handicap is his game, an occasional trap shooter whose best competitive score was a 92, and an even less frequent jazz drummer.

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