Saturday, November 26, 2005

To Parry The Coming Offensive

WHO do we believe DID the wiretapping that produced the Garci tapes? The Intelligence Service of the Armed Forces of the Philippines (ISAFP) has already been fingered by Rep. Roilo Golez of Paranaque (a graduate of the Philippine Military Academy and the U.S. Naval Academy in Annapolis, MD) and investigated by 5 Congressional Committees in the matter of "Sargeant Doble." Those investigations are currently on hold, but for Justice to be done in this case, two crucial tasks must be accomplished by the Democratic Opposition:

(1) To prove that WHOEVER wiretapped the conversations were GUILTY of violations of the Anti-Wiretapping Law, and acts of TREASON against the Republic if equipment and personnel of the Armed Forces were illegally used to spy on candidates in the 2004 national elections (whoever they were).

(2) To prove that EVEN IF such material had been illegally acquired, the PUBLIC'S RIGHT TO KNOW surpasses the putative RIGHTS of the STATE to protect itself, which was the TRUE SPIRIT of the Anti-Wiretapping Law.

UPDATE (2100): I need to make a correction to something I've said in point (2) above. The "spirit" of the Anti-Wiretapping Act is directly the protection of the rights of privacy in interpersonal communications. There is a striking parallel however between the Garci tapes and the case of Bartnicki v. Vopper
An unidentified person intercepted and recorded a phone call between the chief union negotiator and the union president (the petitioners) during collective-bargaining negotiations involving a teachers' union and the local school board. After a teacher-favorable proposal was accepted, a radio commentator played a tape of the intercepted conversation. Petitioners filed suit under both federal and state wiretapping laws, alleging that an unknown person using an electronic device had surreptitiously intercepted their telephone conversation. Rejecting a First Amendment protection defense, the District Court concluded, in part, that the statutes were content-neutral laws of general applicability containing "no indicia of prior restraint or the chilling of free speech." Ultimately, the Court of Appeals found the statutes invalid because they deterred significantly more speech than necessary to protect the private interests at stake.
In the above case, here is how I would put it: the public's right to know cannot be deterred in favor of the rights to privacy of the possible wiretappers themselves. This is especially true because it is alleged that the President herself has been wire-tapped. Which makes the finding of the wiretappers and their punishment a matter of national security.

EYES ON THE PRIZE:
The key point is this. No one can prove that VOTERIGGING occured in 2004 just because everyone has listened to the Garci tapes and they do suggest that happened. It would be a better strategy to simply prove that illegal and treasonous WIRETAPPING occurred in 2004 because it is the MOTIVE for doing the wiretapping that is the evidence of cheating in the elections, NOT the contents of the tapes themselves. (Although the latter will become icing on the cake later.) We must not neglect the obvious: the wiretapping was done as part of a voterigging conspiracy. But from a legal standpoint, it is the very existence of the tapes that must be prosecuted, because they ARE illegal. The Palace's claim that they are therefore USELESS for ANY purpose is itself an admission of guilt by dereliction of duty in the refusal to expose and arrest whoever made the tapes to begin with.

DISHONORING THE MILITARY: From this perspective, it is not the conversations between Garci and GMA and dozens of other administration allies and officials that are telling. What is prima facie evidence of the Military being prostituted to a treasonous endeavour are those largely ignored introductory segments of Doble and other low-ranking personnel who are obviously editing and selecting from a far larger trove of audio recordings for someone's convenience during review and assessment of whether Garci was double crossing them or not. Although dozens and dozens of individuals have been identified by PCIJ as the voices on the tapes, I have not yet seen a definitive identification of the voices that introduce the Garci conversations. Is Doble even one of those voices. Who are those voices? Are they sargeants, lieutenants, colonels in the ISAFP? Why were they doing what they were doing? Why were they editing and collating conversations that are redolent of dishonesty and conspiracy and so degrade all that is left of Philippine democracy?

PALACE BLUNDER? Ironically it is the Palace that has been insisting for six months that ILLEGAL WIRETAPPING occurred, yet they have used this insistence only to say that no one should look further into the provenance of the tapes, they cannot be used for ANY purpose, etc. That's plainly wrong. They should be used to discover and punish whoever made the original tapes by illegal wiretapping. The Palace's complete disinterest in enforcing the Anti-Wiretapping Law in earnest is suspicious at the very least. For why would you want to suppress as "unusable" the very evidence of a crime you say has been commited? Conversely, many people are too mesmerized by the contents of those tapes and enamoured of MP3 technology to see that their mere existence, not just their contents, is proof of wrong-doing by someone. I think we have seen less than 1% of the "intel" collected for the voteriggers. Proving who that someone is and dragging them out into the bright lights will solve this case in one fell swoop, Dr. Watson. (Ha! Someone may have blundered in bringing Garci back! Just do not take the proferred poisoned pawn. Do not go after the voterigging. Go after the wiretapping, for the one leads to the other.)

Be comforted. Iron Logic is Lady Justice's mighty sword! (And have a look at Bartnicki v. Vopper.)

Gone cycling in the boondocks of the Archipelago...have a nice weekend folks.

10 comments:

Rizalist said...

A WARM WELCOME TRAVELER!
It's warm in the Archipelago today, though as you can see something HOT is brewing over at the Supreme Court...

manuelbuencamino said...

According to Newsbreak's latest edition, Buboy Macapagal or a close associate of his ordered the wiretapping. Now investigating that would be a gas wouldn't it ?

But I would not abandon the cover-up angle. It is obstruction of justice which is an impeachable offense.

Rizalist said...

Right you are on obstruction of justice. Unfortunately the case that Garci has just filed, which will probably be granted by the Supreme Court seeks to nullify the reading of the Garci tapes in open session of Congress. If that happens, the Garci tapes will also be inadmissible in the Impeachment Case next year. You see the Palace thinks a lot further ahead than the Opposition. The reason they can do this now? Well there was this matter of a People's Court that...well you get the pic.

Amadeo said...

If anything, this Garci Tape case has landed our usually sleepy, politically at least, town in the limelight.

Since one of his houses is in the subdivision where we also stay, some of our local residents have also gotten some exposure.

Rizalist said...

Wow Amadeo, really! Hey tell us more about that. what do you mean by "exposure"?

Rizalist said...

A comment posted at MLQ3's site today: "Had breakfast with an interesting young lawyer we’ve been discussing at length recently. He thinks the objective of the suit at the Supreme Court is not just to shut everybody up and let Garci have a nice XMAS, but to destroy the basis for NEXT YEAR’s impeachment. I agreed and it is exactly what I was afraid of would become possible for the Palace to do because of the Opposition’s recent loss of credibility with the public due to that (*#%$#) People’s Court. There is also an interesting angle I didn’t see. Apparently the next to the next Ombudsman will be…HILARIO DAVIDE! Why? He also need immunity from certain suits pertinent to 2001 Edsa II. But it seems he cannot have unless he performs ONE LAST SERVICE–to dig the grave of IMPEACH-GLORIA-DOS."

Edwin Lacierda said...

DJB,

That is an interesting discussion with the young lawyer but that is contingent upon what Garci will eventually confessed or admit to, if he is given the privilege (not right) by his handlers
to do so.

But here is what we know so far, his wife has practically admitted that it was Garci's voice when she complained that the tapes do not show the whole slew of conversations between Garci and the politicians.

I do not know if the criminal courts will appreciate the wife's statement as a violation of the evidentiary rules of privileged communication. Someone in the government might consider the interview of Mrs. Garci with Ricky Carandang as privileged since a wife cannot testify against her husband in a criminal case and therefore, not admissible in evidence. What I am quite certain is that if a criminal case is filed against Garci, his defenders will exclude the wife from testifying.

Bartnicki is interesting on several fronts: one, that you have mentioned earlier, that the right of the people to information especially on matters of public interest trumps inadmissibility of the tapped conversations.

Two, while it may be admissible as evidence, it does not deny the right of the persons tapped to sue for damages. And this will assume our Anti-Wiretapping Act covers cell phone wireless conversations.

Three,the case of Bartnicki never identified who the tappers were, only those who played the conversation over the airwaves. This makes for interesting parallels with the decision of Congressmen Remulla and Locsin to play the tapes

There is a threat now by Garci to sue the solons who played the tapes. But that would raise a novel question as to whether cell phone conversation are covered by our outmoded law on Wiretapping. Bartnicki detailed the history of wiretapping laws in the US and precisely enacted a law to cover the tapping of cell phone and/or wireless telephone conversations. Our laws and jurisprudence do not cover wireless and cellphone conversations and while we may seem to be splitting hairs, the distinction is and will be quite relevant.

Now, you are concerned that the military intelligence that prostituted themselves to do this perfidious act would go scot free if tapping of cellphone conversations are deemed not covered by the Wiretapping Act. That may not be so. I am sure there are enterprising legal researchers in the fractured opposition that can invoke some arcane law or military regulation to hold Danga and his men or their civilian patrons responsible for parlaying their sacred duty to defend the State into one of selling their services to the highest bidder.

There is still a God on earth who will not take to cheating, lying and stealing lightly or sitting down. And that is our greatest consolation.

Rizalist said...

Thanks for this excellent commentary Ed! Sorry for the late reply but I just came from the new Ayala development in Morong (in the shadow of Mt. Natib, near the Bataan Nuclear Power Plant, $2B and not a single kilowatt! ahh but that is a different crime from a different era, later..) Nice outing this sunday, but to get back to this:

(1) IF ISAFP could only be proven to have tapped a single word illegally from a POLITICAL CANDIDATE in 2004, we would not need any enterprising legal researchers at all, for the Law they violated would be easy to identify no? OMNIBUS ELECTION CODE.

(2) Your discussion of Bartnicki suggests we need to MINE Bartnicki for further insights into not only this case but the larger concern of mine, which is how we the PEOPLE must, ONCE AND FOR ALL, secure our own democracy by instituting such technical, legal, administrative and CLEVER design into our NEXT ELECTION that we shall not have to rely on a "GOD ON EARTH" to win our freedom at last, but only have to THANK him!

Please continue this conversation with me here or for PRIVATE COMMUNICATIONS THAT ARE ALWAYS CONFIDENTIAL email lang.

Amadeo said...

Sorry for the delay. Had to take a mountain trip, away from the madding crowd.

I meant simply that some of the locals got their media exposure, being interviewed by media on what they know about his whereabouts.

I understand that while stationed here Garci was quite active in subdivision business.

BTW, his house on Phase 2 is along a street named after my father.

Rizalist said...

Hi Amadeo. Boy lots has happened. Join us on the Top Thread. Hope you had a nice time in the mountains...fact I KNOW you had a nice time in the mountains