Domestic Spying and Criminal Appeals

I haven't found any specific news of this, but it seems possible (if not likely) that someone convicted of a terrorism-related or other crime might soon mount an appeal of that conviction by arguing that the evidence on which it was based was obtained illegally through the NSA's domestic spying program. What would a court faced with such an appeal do? And if evidence obtained through the NSA's warrantless spying was found to be inadmissible in a criminal prosecution, how would that affect the argument that Bush broke the law in ordering the spying in the first place?

On a related note, attorney Harvey Silverglate has condemned the warrantless domestic spying program, as well as Bush's lame argument that the NY Times' disclosure of the program was a threat to national security:

The NSA has been around for 54 years and has been permitted to conduct unbridled foreign surveillance for the duration; the FISA extended that reach to include Americans, albeit with a readily obtainable warrant. The terrorists would have to be pretty dumb to have learned about electronic tapping by reading last week’s New York Times. And Bush would have to be pretty dumb for thinking we’d swallow such a line.

Silverglate's argument seems accurate; as many have already pointed out, the threat to the U.S. here is not that the press has brought this domestic spying program to light, but that the program exists in the first place. But if many people are saying this, why bother to point out Silverglate's article? Because he has a very interesting attorney-at-law website, that's why. Silverglate appears to be an accomplished and respectable lawyer, but what image, exactly, is he trying to present there?

Posted January 6, 2006 02:56 PM |