America... Spying on Americans

Physical and property searches without warrants next?
The Letter of the Law
By Chitra Ragavan
US News & World Report
27 March 2006 Issue

The White House says spying on terror suspects without court approval is ok. What about physical searches?

In the dark days after the Sept. 11, 2001, terrorist attacks, a small group of lawyers from the White House and the Justice Department began meeting to debate a number of novel legal strategies to help prevent another attack. Soon after, President Bush authorized the National Security Agency to begin conducting electronic eavesdropping on terrorism suspects in the United States, including American citizens, without court approval. Meeting in the FBI's state-of-the-art command center in the J. Edgar Hoover Building, the lawyers talked with senior FBI officials about using the same legal authority to conduct physical searches of homes and businesses of terrorism suspects - also without court approval, one current and one former government official tell US News. "There was a fair amount of discussion at Justice on the warrantless physical search issue," says a former senior FBI official. "Discussions about - if [the searches] happened - where would the information go, and would it taint cases."

FBI Director Robert Mueller was alarmed by the proposal, the two officials said, and pushed back hard against it. "Mueller was personally very concerned," one official says, "not only because of the blowback issue but also because of the legal and constitutional questions raised by warrantless physical searches." FBI spokesman John Miller said none of the FBI's senior staff are aware of any such discussions and added that the bureau has not conducted "physical searches of any location without consent or a judicial order."

In December, the New York Times disclosed the NSA's warrantless electronic surveillance program, resulting in an angry reaction from President Bush. It has not previously been disclosed, however, that administration lawyers had cited the same legal authority to justify warrantless physical searches. But in a little-noticed white paper submitted by Attorney General Alberto Gonzales to Congress on January 19 justifying the legality of the NSA eavesdropping, Justice Department lawyers made a tacit case that President Bush also has the inherent authority to order such physical searches. In order to fulfill his duties as commander in chief, the 42-page white paper says, "a consistent understanding has developed that the president has inherent constitutional authority to conduct warrantless searches and surveillance within the United States for foreign intelligence purposes." The memo cites congressional testimony of Jamie Gorelick, a former deputy attorney general in the Clinton administration, in 1994 stating that the Justice Department "believes, and the case law supports, that the president has inherent authority to conduct warrantless physical searches for foreign intelligence purposes."

"Black-bag jobs." Justice Department spokesman Brian Roehrkasse says the white paper cited the Gorelick testimony simply to bolster its legal defense of the NSA's electronic surveillance program. Roehrkasse points out that Justice Department lawyers have told Congress that the NSA program "described by the president does not involve physical searches." But John Martin, a former Justice Department attorney who prosecuted the two most important cases involving warrantless searches and surveillance, says the department is sending an unambiguous message to Congress. "They couldn't make it clearer," says Martin, "that they are also making the case for inherent presidential power to conduct warrantless physical searches."

It could not be learned whether the Bush administration has cited the legal authority to carry out such searches. A former marine, Mueller has waged a quiet, behind-the-scenes battle since 9/11 to protect his special agents from legal jeopardy as a result of aggressive new investigative tactics backed by the White House and the Justice Department, government officials say. During Senate testimony about the NSA surveillance program, however, Gonzales was at pains to avoid answering questions about any warrantless physical surveillance activity that may have been authorized by the Justice Department. On February 6, Patrick Leahy, the ranking Democrat on the Judiciary Committee, asked Gonzales whether the NSA spying program includes authority to tap E-mail or postal mail without warrants. "Can you do black-bag jobs?" Leahy asked. Gonzales replied that he was trying to outline for the committee "what the president has authorized, and that is all that he has authorized" - electronic surveillance. Three weeks later, Gonzales amended his answer to Leahy's question, stating that he was addressing only the legal underpinnings for the NSA surveillance program but adding: "I did not and could not address operational aspects of the program, or any other classified intelligence activities." In the past, when Congress has taken up explosive issues that affect the bureau, Mueller has made it a point, officials have said, to leave Washington - and sometimes the country - so as not to get pulled into the political crossfire. When Gonzales testified February 6, Mueller was on his way to Morocco.

Government officials told the magazine that Mueller and then Deputy Attorney General James Comey, who also questioned the NSA spying program, both believed that while it was a close call legally, the president did have authority to conduct electronic surveillance of terrorism suspects in the United States without court approval; both men, however, raised grave concerns about the possible use of any information obtained from any warrantless surveillance in a court of law.

At least one defense attorney representing a subject of a terrorism investigation believes he was the target of warrantless clandestine searches. On Sept. 23, 2005 - nearly three months before the Times broke the NSA story - Thomas Nelson wrote to US Attorney Karin Immergut in Oregon that in the previous nine months, "I and others have seen strong indications that my office and my home have been the target of clandestine searches." In an interview, Nelson said he believes that the searches resulted from the fact that FBI agents accidentally gave his client classified documents and were trying to retrieve them. Nelson's client is Soliman al-Buthe, codirector of a now defunct charity named al-Haramain, who was indicted in 2004 for illegally taking charitable donations out of the country. The feds also froze the charity's assets, alleging ties to Osama bin Laden. The documents that were given to him, Nelson says, may prove that al-Buthe was the target of the NSA surveillance program.

The searches, if they occurred, were anything but deft. Late at night on two occasions, Nelson's colleague Jonathan Norling noticed a heavyset, middle-aged, non-Hispanic white man claiming to be a member of an otherwise all-Hispanic cleaning crew, wearing an apron and a badge and toting a vacuum. But, says Norling, "it was clear the vacuum was not moving." Three months later, the same man, waving a brillo pad, spent some time trying to open Nelson's locked office door, Norling says. Nelson's wife and son, meanwhile, repeatedly called their home security company asking why their alarm system seemed to keep malfunctioning. The company could find no fault with the system.

In October, Immergut wrote to Nelson reassuring him that the FBI would not target terrorism suspects' lawyers without warrants and, even then, only "under the most exceptional circumstances," because the government takes attorney-client relationships "extremely seriously." Nelson nevertheless filed requests, under the Freedom of Information Act, with the NSA. The agency's director of policy, Louis Giles, wrote back, saying, "The fact of the existence or nonexistence of responsive records is a currently and properly classified matter."

"Maximum speed." For the FBI, the very mention of the term "black-bag jobs" prompts a bad case of the heebie-jeebies. In 1975 and 1976, an investigative committee led by then Sen. Frank Church documented how the FBI engaged in broad surveillance of private citizens and members of antiwar and civil rights groups, as well as Martin Luther King Jr. The committee's hearings and the executive-branch abuses that were documented in the Watergate investigation led to numerous reforms, including passage of the Foreign Intelligence Surveillance Act in 1978. The law created a special secret court tasked with approving electronic wiretaps in espionage and other national security investigations. After the Aldrich Ames spy case, Congress amended FISA to include approval of physical searches. After 9/11, the law was further amended to allow investigators to place wiretaps or conduct physical searches without notifying the court for 72 hours and to obtain "roving" wiretaps to allow investigators to tap multiple cellphones.

In justifying the NSA's warrantless surveillance program, Gonzales has argued that the review process required for a FISA warrant is too cumbersome for a program that is of "a military nature" and that requires "maximum speed and agility to achieve early warning."

White House lawyers, in particular, Vice President Cheney's counsel David Addington (who is now Cheney's chief of staff), pressed Mueller to use information from the NSA program in court cases, without disclosing the origin of the information, and told Mueller to be prepared to drop prosecutions if judges demanded to know the sourcing, according to several government officials. Mueller, backed by Comey, resisted the administration's efforts. "The White House was putting pressure on Mueller to broadly make cases with the intelligence," says one official. "But he did not want to use it as a basis for any affidavit in any court." Comey declined numerous requests for comment. Sources say Mueller and his general counsel, Valerie Caproni, continue to remain troubled by the domestic spying program. Martin, who has handled more intelligence-oriented criminal cases than anyone else at the Justice Department, puts the issue in stark terms: "The failure to allow it [information obtained from warrantless surveillance] to be used in court is a concession that it is an illegal surveillance."

Mueller has been criticized by some agents for being too close to the White House. His predecessor, Louis Freeh, made his break publicly from President Clinton, even returning his White House security access badge. Until recently, Mueller reported to the White House daily to brief Bush and Cheney. But Mueller has not shied away from making tough decisions. He refused to allow FBI agents to participate in CIA and Defense Department interviews of high-value prisoners because of the administration's use of aggressive interrogation techniques. In Iraq and at the Pentagon-run camp for terrorism suspects at Guantánamo Bay, Cuba, it has been FBI agents who have called attention to what they viewed as abuse of detainees.

It is unclear how much resistance from the FBI the White House and the Justice Department will be willing to brook. What is clear, however, is the extraordinary extent to which officials in both places inject themselves in the bureau's operations. In late 2004, President Bush asked then FBI Deputy Director Bruce Gebhardt, filling in for Mueller during the daily White House briefings, minute details about a suspected terrorism threat in Kansas. "Don't worry, Mr. President," responded Gebhardt, straight-faced. "We have Kansas surrounded."

It's not my problem that you can not see the hyprocracy with Ted and his voting record.

Way to counter facts with mis-spelled words. That'll win the argument for ya.

Cheers Woiyo! Yer still my favorite

Cycloptichorn

Whatever

That could be my problem, however, I think my problem was lack of facts on your part.

Perhaps your problem is you can't see the hypocrisy in your own statements. (or in Cheney's)


Strange, A2K doesn't recognize "hyprocracy" as spelled wrong but it isn't that way in any dictionary. Google finds lots of web postings with that spelling however. (mostly political rants)

Remember that hypocrisy begins with hypo -- the ending is isy ... we learnt at school :wink:

Re: Physical and property searches without warrants next?



Okay . . . says White House lawyers and the VP's chief of staff to prosecutors . . . let's try to sneak this illegally and unconstitutionally gathered information and evidence into court proceedings . . . and if we're asked where this information came from . . . we'll drop the case . . .

THIS DEMONSTRATES GUILT!!!!

50 U.S.C. § 1809. Criminal sanctions

(a) Prohibited activities

A person is guilty of an offense if he intentionally—

(1) engages in electronic surveillance under color of law except as authorized by statute; or

(2) discloses or uses information obtained under color of law by electronic surveillance, knowing or having reason to know that the information was obtained through electronic surveillance not authorized by statute.


(See also federal criminal code, 18 U.S.C. § 241, Conspiracy against rights, and 18 U.S.C. § 242, Deprivation of rights under color of law.)


The guilty bastards, the president, the vice-president, the attorney general, and their cohorts are criminals and belong in prison. We don't want criminals sitting in the White House.

Debra, I agree 100 percent; all those criminals belong in the pokey, but too many Americans think they are good for us! How ridiculous!

Some 50 percent of Americans are too stupid to understand anything about our legal system!

I will email some professors I know and see what they have to say about this, but it doesn't look too good for the admin.

Cycloptichorn

Re: Physical and property searches without warrants next?


In our country people are presumed innocent of a crime until proven guilty beyond a reasonable doubt in a court of law, Debra. See Coffin v. U.S., 156 U.S. 432, 15 S. Ct. 394 (1895).

Pretty much everyone who has ever watched a cop show on TV knows that. I would have thought you did too.

Re: Physical and property searches without warrants next?


Humm.. I always thought the concept of proving guilt was reserved only for Democratic Partisens and Republicans were guilty on their face.

Is that the reason why so many prisoners in Gitmo have never had their day in court?

I said, "In our country."

I said, "In our country."[/quote]

In our country...To me that means "...in our society; under our laws."
The administration lawyers view it in the narrowest interpretation.

Changing the subject a little bit, I note that yesterday Mr Bush's advisors allowed him to be questioned by folks other than those selected to be there to applaud him. And today he faced reporters for a rare question and answer session. This seems to indicate a change in strategy at the White House.

His 2nd real press conference this year. And he actually had to try to answer some questions. Amazing.

Re: Physical and property searches without warrants next?



Tico:

The "presumption of innocence" is a rebuttable presumption. In evidentiary terms, it serves as evidence in favor of the accused that may be rebutted by contrary proof. It is a basic evidentiary component of a fair trial. A jury instruction on the presumption is one way of impressing upon the jury the importance of an accused's right to have his guilt or innocence determined solely on the basis of evidence introduced at trial.

The evidence with respect to Bush's and his cohorts' unlawful conduct is more than sufficient to rebut the presumption of innocence and to prove to a jury that the bastards are guilty beyond a reasonable doubt. A special prosecutor ought to be appointed to prosecute their asses.

If they are prosecuted, your evidentiary concerns will be addressed as I am certain that defense counsel would request a jury instruction on the presumption we all hold near and dear to our hearts. Inasmuch as I have already expressed an opinion on their guilt, I doubt that I will be found qualified to sit as a juror. So, Tico, there is no need for you to worry about the possible fairness or unfairness of a prosecution against these CRIMINALS.


Far more relevant to our discussion than your citation to Coffin v. U.S, is Justice Brandeis's dissenting opinion in Olmstead v. United States:

"Decency, security, and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means-to declare that the government may commit crimes in order to secure the conviction of a private criminal-would bring terrible retribution. Against that pernicious doctrine this court should resolutely set its face."

Olmstead v. United States, 277 U.S. 438, 485 (1928) (dissenting opinion).
http://laws.findlaw.com/us/277/438.html


Justice Brandeis' words are especially relevant because he dissented from a majority opinion that held government wiretapping of telephone lines did not violate the Fourth Amendment. Years later, the majority opinion in Olmstead was overruled and Justice Brandeis' position prevailed in KATZ v. UNITED STATES, 389 U.S. 347 (1967) (The Government's activities in electronically listening to and recording the petitioner's words violated the privacy upon which he justifiably relied while using the telephone booth and thus constituted a "search and seizure" within the meaning of the Fourth Amendment.)

Our lawbreaking government officials must be held accountable for their evil conduct that violates the civil liberties of the American people. Even if our government fails to prosecute these hoodlums in a court of law, nothing, not even your plea to an evidentiary presumption, can stop the court of public opinion from scrutinizing the unlawful conduct of the bushco administration, passing judgment, and penalizing the guilty ones and their pernicious political party in the voting booths.

Yeah, it's rebuttable at trial, through the presentation of evidence, and a finding of guilt beyond a reasonable doubt. Of course prosecutors have evidence against a defendant, or they won't bring charges against them, but that doesn't mean the presumption is rebutted prior to trial, regardless of the sufficiency of the evidence of guilt in a given matter. You, apparently, feel this presumption need not be afforded to those you don't like, and proclaim them guilty without a trial.

Nice double standard you've got going.

It is a very lovely double standard there Tico.

That was a joke.

Is this thing on?

Tico's double standard falls all over creation. He thinks Arab Americans are not "we." He thinks "in our country" means the neocon interpretation of America. His "we" presumes he speaks for all Americans. One thing is for sure; he's a first class arse.