Government Regulate Thyself . . . But Only When Its Covenient . . . And Don't Follow Your Own Rules
Today's headlines concerning the relaxing of internal FBI/Department of Justice domestic spying policies hit home for me. I have recently been involved in defending a case in which a pretrial challenge was brought on behalf of our client because the Department of Justice failed to follow its own rules. Like the discussion in Adam Liptak's article in today's New York Times, the problem is that when the Department of Justice or FBI creates their own self-regulatory policies they are free to change them at will, or even to ignore them without concern that the Courts will intervene.
Liptak points out the policy reasons underlying the old rules on domestic spying, notes that those reasons may not exist todya, and correctly observes that those policies do not carry with them the force of law or any legal authority, constitutional or otherwise.
Rules That Limited F.B.I. Domestic Spying Were Rooted in Earlier Era, Not in Law. The surveillance restrictions on the F.B.I that were lifted Thursday were self-imposed. A legal challenge to the changes would be unlikely to succeed. By Adam Liptak. [New York Times: National]
I my recent case the government ignored its own rules and lured my client into making statements which should not have been made. Despite this, the trial court would not help. Noting that Department of Justice self-regulations do not create any rights in those individuals who are prejudiced when those rules are ignored, the Court stayed out of the fray. (Imagine for a moment how you explain this to a client. "Yes, Mr. Jones the government is prosecuting you for violating the law, and they violated the their own rules in obtaining evidence against you. But you have to play by the rules, but they do not." -- Doesn't this sound sensible??}
One problem with the whole concept of government self-regulation is that the government will not play by its own rules when it is incovenient and can willy nilly impact citizens who ought to have some right to expect that the government must be a rule obeyer, rather than a rule breaker. Another problem is that the only reason the rules are usually imposed in the first place is under the threat of regulation by Cogress in the form of binding and enforceable laws (which actually help citizens) and which have teeth when they are ignored.
It is time for Congress not to assume the good faith of the executive branch when it self-regulates. I hate to ask anybody in government for more law, but where the institution that is limited is the government itself more regulation seems like a reassuring concept.
10:59:55 PM 
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