Dec 30 2005
Legal Warrantless Searches
Here is a great discussion of legal warrantless searches, which combined with the basic fact the Constitution, and the powers it subscribes to the President, supercedes any legislation out of Congress (hing: FISA) results in a really bad year to come for the impeachment crazed left.
Several types of search and seizure have long been considered appropriate under the Fourth Amendment, even when not supported by warrant. In particular, the principle of “hot pursuit” has been applied, where, if the police are chasing a fugitive and they see him take refuge in your house, they can enter your house without a warrant and make an arrest. In addition, searches of your person and effects at airports, courthouses, and other public buildings are considered reasonable because of the security threat, and because you’re voluntarily entering the area that requires the search. So, warrantless searches are legal if they’re considered “reasonable.”
Now, if you re-read the Fourth Amendment, you’ll see that it applies to your “person, house, papers, and effects,” but not to your communications. However, in 1967, an activist Supreme Court twisted the constitution to make it say what they thought it should say. Since then, warrants are required for some wiretaps. It seems that the Supremes assumed that the Founding Fathers didn’t mention communications in the Fourth Amendment because there were no communications in 1789, not realizing that the Constitution expressly authorized Congress to set up the Post Office without making mail secure from government snooping. Be that as it may, in the 1967 case, the Supremes noted that warrant requirements do not apply to issues of national security.
Good stuff.
Yeesh! AJ — your links I’ll deal with, but Powerline? Hinderaker still thinks Bush got into the National Guard with no help from his family! Sorry, but that guys needs a diaper. The rest I don’t mind reading…
FBI Office of the General Counsel wrote:
In the past, the FBI has encountered situations in which the holders of relevant records refused to produce them absent a subpoena or other compelling authority. When those records did not fit within the defined categories for National Security Letters or the four categories then defined in the FISA business records section, the FBI had no means of compelling production.
Communication from the FBI Office of the General Counsel to All Divisions, New Legislation, Revisions to FCI/IT Legal Authorities, Foreign Intelligence Surveillance Act (Oct. 26, 2001), attached to Letter from Assistant Attorney General Bryant to Senator Feingold (Dec. 23, 2002), available at http://fas.org/irp/agency/doj/fisa/doj-fisa-patriot-122302c.pdf.
SBD
Journal of National Security Law & Policy 2005
1 J. Nat’l Security L. & Pol’y 37
LENGTH: 18103 words
Article: Counterintelligence and Access to Transactional Records: A Practical History of USA PATRIOT Act Section 215
NAME: Michael J. Woods*
BIO: * The author is a former chief of the FBI’s National Security Law Unit. He later served as Principal Legal Advisor to
the National Counterintelligence Executive. The views expressed in this article are his own and do not necessarily reflect the position of any U.S. government component.
SUMMARY:
… Perhaps no provision of the Act has generated more controversy than 215, which authorizes the FBI to seek a court order compelling the production of “any tangible things” relevant to certain counterintelligence and counterterrorism investigations. … ” The issuance of a national security letter under this provision required the certification of a high– ranking FBI official that the information sought was relevant to a foreign counterintelligence investigation and that there were “specific and articulable facts giving reason to believe” that the target was a foreign power or agent of a foreign
power under the FISA definitions. … In summary, on the eve of the September 11 terrorist attacks the FBI had five separate legal authorities that addressed the need to compel production of transactional information in counterintelligence investigations: three types of national security letters (under RFPA, ECPA, and FCRA), the FISA pen register/trap and trace authority, and the FISA business records authority. … The second major criticism of 215 concerns the movement from the standard of “specific and articulable facts giving reason to believe” that the target is an agent of a foreign power to a standard of “relevance to an authorized investigation to protect against international terrorism or clandestine intelligence activities. …
The author gives the historical background and proposes a solution to the current section 215 that he maintains are essential.
Here is a link to the entire article.
SBD
I find this part of particular interest.
How did this departure from the established pattern of clear limitation to transactional information occur? I suggest that a clue is to be found in Congress’s rejection of the Administration’s proposal for “administrative subpoena” authority to obtain business records. n141 Congress rejected that proposal in favor of the 215 language, apparently concluding that the requirement of a court order in 215 was more protective of privacy interests. n142 In the process it may have felt that the involvement of a neutral magistrate made a limitation on the type of information less important. There are, however, some hints in the text of 215 that elements of the “administrative subpoena” proposal were simply inserted into the existing FISA business records provision. For example, the phrase “production of any tangible things (including books, records,
papers, documents, and other items)” n143 closely tracks language in the Attorney General’s administrative subpoena authority for use in drug investigations, which requires “production of any records (including books, papers, documents, and other tangible things).” n144 If so, Congress might have thought it was prescribing the kind of limited scope found in the administrative subpoena authorities.
Whatever the provenance of the 215 text, abandonment of the administrative subpoena option foreclosed one proven path to securing constitutionally permissible access. Administrative subpoenas have long been available to executive branch agencies, and they now exist in at least 335 [*61] different forms. n145 There is a substantial body of case law approving the use of administrative subpoenas, including Supreme Court decisions establishing general standards. n146 A key feature of administrative subpoena authority is its bifurcation of the authority to issue (held by the agency) and
the authority to enforce (held by a court). n147 This arrangement may facilitate testing the proper scope of a particular subpoena authority in court (provided the target whose records are obtained is given notice), especially if the authority is applied in a novel or controversial context. n148 Despite the diversity of administrative subpoena authorities, moreover, the distinct enforcement role of the courts, coupled with internal agency guidelines on subpoena use, dissemination of information, and compliance with other privacy or notice requirements, are effective mechanisms to police the use of
administrative subpoena authority. n149
Unlike authorities for administrative subpoenas, national security letter authorities do not include explicit enforcement mechanisms. n150 If the recipient of a national security letter refuses to comply, the government must approach a federal court for enforcement. n151 There are no reported decisions indicating that this has occurred, but if it did happen, the court could draw on existing administrative subpoena case law to resolve questions of scope and proper use. n152
[*62] In contrast to the administrative subpoena authority sought by the Administration, the language of 215 seems to rule out an easy test of its scope. Under 215 a records custodian immediately receives a FISA Court order to provide government access to “tangible things,” so failure to comply does not trigger an enforcement proceeding, but instead places the recipient in peril of being held in contempt. n153
SBD
Can we back up just a bit?
“The FISA statute was created precisely because of the domestic wiretapping “for national security purposes during a time of war (Vietnam)†by Richard Nixon. FISA specifically was Congress’ check on the president’s surveillance powers. Bush ignored FISA as surely as Nixon ignored the existing laws when he conducted domestic wiretaps. Nixon had to resign because of it, A.J. Are you now saying that what Nixon did was legal?”
_____
Not quite: President Nixon’s abuse was allegedly in ordering wiretaps of political opponents and others on a so-called “enemies list.” That is, his personal/political enemies, not enemy agents of foreign governments or groups.
That his DOJ additionally used wiretaps, without probable cause, on US citizens active in radical groups such as SDS, etc., earned Nixon and John Mitchell censure; but where the “enemies list” surveillance might constitute an impeachable offense, the radical-groups surveillance was mere overzealousness. But note, these groups’ members were not listed in foreign enemy address books, and they were not tracked or discovered via surveillance of enemy agents.
Similar to Nixon’s “enemies list” abuses, as reportedly disclosed in the Barrett Report which is being held in lock-down by Senate Democrats, President Clinton used IRS audits and other federal investigative strategies to take the starch out of his political critics.
That Clinton’s IRS-audits-gambit was a straight-up equivalent of Nixon’s “enemies list” tactics, does not negate the Clinton Administration’s rightful claim, argued on identical points by Jamie Gorelick, Clinton’s Deputy Attorney General, to the same constitutional authority the Bush Administration asserts in the current NSA-FISA kerfuffle.
A big difference between the Clinton & Nixon Administrations, and the Bush Administration, is that President Bush has not attempted to claim or use his constitutional authority as a handy sap for mugging political opponents, as those two former presidents did.
“FISA specifically was Congress’ check on the president’s surveillance powers…”
No. FISA was Congress’ check on illicit use of surveillance powers. Unfortunately, the FISC fell into the overreaching hands of judicial activists who are apparently suffering from little Napoleon complexes: ONE warrant modification in eight years of Clinton applications, versus 179 modifications/denials in five years of Bush applications.
If another reason is needed to justify sidelining this court, try this one: MOUSSAOUI, August 22, 2001.
Any wagers as to a Bush impeachment? You libs seem pretty sure of yourselves…
[…] I just have to post this comment left on AJStrata’s blog by MerryJ1 in response to another commentor, it’s freakin excellent: Can we back up just a bit? “The FISA statute was created precisely because of the domestic wiretapping “for national security purposes during a time of war (Vietnam)†by Richard Nixon. FISA specifically was Congress’ check on the president’s surveillance powers. Bush ignored FISA as surely as Nixon ignored the existing laws when he conducted domestic wiretaps. Nixon had to resign because of it, A.J. Are you now saying that what Nixon did was legal?†[…]