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March 19, 2006 6:33 PM   Subscribe

"Don't worry Mr. President, we have Kansas surrounded." Warrantless searches: they're not just for wiretaps anymore. U.S. News and World Report probes the Bush administration's covert drive to conduct physical searches of American homes without court approval.
posted by digaman (52 comments total)

 
from the article:
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."
posted by digaman at 6:36 PM on March 19, 2006


Um ... didn't the Clinton administration then change FISA so that it covered physical searches, such that a warrant would be required? I.e, the clinton administration was basically saying "Yeah, under the law as written we're allowed to do that ... but we don't think we should be"? Or, put another way, Gonzales is perpetrating a lie via a sin of omission?
posted by kaemaril at 6:42 PM on March 19, 2006


It's funny, the "I should move to another country feeling" is so familiar these days...
posted by rachelpapers at 6:42 PM on March 19, 2006


This reminds me of Ross Perot's 'solution' to the Drug Problem (tm).
He actually thought wiretaps and door-to-door searches were the way to go.
posted by shnoz-gobblin at 6:44 PM on March 19, 2006


If there was ever an administration that seemed determined to prove correct the notion that incremental loss of Constitutional protections is a slippery slope, this is it.
posted by digaman at 6:45 PM on March 19, 2006


Once again, Clinton's fast and loose interpretation of the law provides cover and precedent for Bush to do even worse.

Oh course, we didn't criticise Clinton, we got uncomfortable but we didn't criticize him, because he was "our guy", because after twelve years of Republican presidents, we were so desperate not to queer our chances that we were willing to overlook our own side not upholding our liberal values.

Once you give up your principles, you have nowhere left to stand.
posted by orthogonality at 6:45 PM on March 19, 2006


http://mediamatters.org/items/200601060010

Gorelick's 1994 testimony was first highlighted in the context of Bush's domestic surveillance program in a December 20 National Review article by White House correspondent Byron York, headlined "Clinton Claimed Authority to Order No-Warrant Searches." Since then, several conservative commentators have used Gorelick's statement about physical searches to falsely claim that she asserted the same power that the Bush administration has asserted in defense of its electronic surveillance program.

In her testimony, Gorelick noted that, in contrast with physical searches, FISA did address electronic surveillance. She stated: "In FISA, the privacy interests of individuals are protected not by mandatory notice [to the surveillance target] but through in-depth oversight of foreign intelligence electronic surveillance by all three branches of government and by expanded minimization procedures."

At the same hearing, Gorelick testified in support of amending FISA to create a warrant requirement for physical searches. Gorelick stated that "the administration and the attorney general support, in principle, legislation establishing judicial warrant procedures under the Foreign Intelligence Surveillance Act for physical searches undertaken for intelligence purposes." Gorelick further stated that "the Department of Justice believes that Congress can legislate in the area of physical searches as it has done with respect to electronic surveillances, and we are prepared to support appropriate legislation." In October 1994, Congress passed legislation to require FISA warrants for physical searches. In February 1995, Clinton issued an executive order that implemented the new FISA requirements on physical searches.
posted by kaemaril at 6:47 PM on March 19, 2006


Freeper article from 2000 on FISA and "black bag searches" under Clinton
posted by rxrfrx at 6:51 PM on March 19, 2006


And from that article, the most entertaining comment:

To: mommadooo3

Any chance of Bush rolling some of this back?

posted by rxrfrx at 6:53 PM on March 19, 2006


shnoz-gobblin; you know, Perot's proposal is at least internally consistent. Given, of course, that to truly fight a War-on-Drugs (tm), your methods would necessarily be draconian, since you're essentially criminalizing normal human behaviour.
posted by odinsdream at 6:53 PM on March 19, 2006


Quick! Blame Clinton!
posted by fandango_matt at 6:56 PM on March 19, 2006


The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
posted by kirkaracha at 6:57 PM on March 19, 2006


Well that's a load off my chest, it's all Clinton's fault. And to think I foolishly thought the Bush administration was trashing civil rights. Silly me.
posted by BillyElmore at 7:00 PM on March 19, 2006


Impeach, and Imprison--now
posted by amberglow at 7:01 PM on March 19, 2006


Ortho, I hated Clinton! By and large, he had great foreign policy (Somalia didn't go so well, but that wasn't obvious up front quite like Iraq was), but his domestic policies sucked. He was taking away freedoms nearly as quickly as Bush 1... it was under his watch that it become illegal, for instance, to carry too much cash. Worse, he somehow managed to get it set up so that you have to prove yourself innocent if you have a lot of cash. They just take it, and you have to prove your innocence to get it back.

He was _horrible_. It never occurred to me that anyone could be this much worse.
posted by Malor at 7:01 PM on March 19, 2006


Also, wasn't it under Clinton that we lost the right to travel anonymously by air?
posted by Malor at 7:02 PM on March 19, 2006


"i pledge allegiance to a country without borders, without politicians. watching for the sky to get torn apart." - switchfoot
posted by quonsar at 7:15 PM on March 19, 2006


Malor writes "He was _horrible_. It never occurred to me that anyone could be this much worse."


Yup, I never thought I'd yearn to have Slick Willie back.

Maybe we should just accept that civil liberties are a thing of the past. After all, we're building concentration camps in Texas.
posted by orthogonality at 7:18 PM on March 19, 2006


Um, not everyone has the context here, clearly.

The key phrase above is "FOR FOREIGN INTELLIGENCE PURPOSES." The U.S. Government has always had wide latitude - WIDE latitude - to conduct activities that directly qualify as being "counter-espionage". Something that you would read in a Robert Le Carre novel. Secretly wiretapping people who are truly known to be Soviet agents, or breaking into the houses of people who are truly known to be Soviet agents, has long been considered acceptable. There was a whole debate on just how far these powers extended in the early 1990's. Indeed, Clinton's people have been strongly criticized by the right-wing nutjobs for not going far enough - not being willing to be Big Brother enough.

In 1994, the FISA Act was amended to clarify the above debate, and to settle it. The Act specifically sets out the conditions under which wiretapping and electronic eavesdropping can occur.

That is, this whole debate already happened, and was already settled. Gonzales is going back for another bite at the apple. He's just going to refer to the antecedents to the 1994 revision, such as Gorelick's 1994 testimony, without ever mentioning that hey, that issue was actually settled by the passage of a law covering that exact situation just a couple of months later. Gonzales is just going to pretend that law never existed, and hopefully none of the press will be brazen enough to point out that it does.

Let's say you're pushing the boundaries in school. You start shooting spitballs at the other kids. When the teacher yells at you, you explain that no one had ever told you you couldn't do that. Well, that defense works once, and once only, because from now on, you're on notice that that behavior isn't permitted. When you try the same "didn't know it was wrong" defense again - as Gonzales is doing - you get busted.
posted by jellicle at 7:23 PM on March 19, 2006


Clinton doesn't matter---Congress amended FISA, yes or no? This is not allowed or legal unless a warrant is obtained, yes or no? This is illegal, yes or no?

It's really not complicated at all. There are laws, and everyone has to abide by them or get them changed--Bush has done neither. We have criminals in the White House again, and they're very like Nixon, but worse. What needs to be done?
posted by amberglow at 7:25 PM on March 19, 2006


jellicle writes "The U.S. Government has always had wide latitude - WIDE latitude - to conduct activities that directly qualify as being 'counter-espionage'. Something that you would read in a Robert Le Carre novel."


Most Robert Le Carre novels deal with the British intelligence services, not U.S. laws or practices. And most Robert Le Carre novels were written by John le Carré or David Cornwell.
posted by orthogonality at 7:30 PM on March 19, 2006


Olberman did a piece on this on Friday. Thanks for the link, digaman.
posted by homunculus at 7:39 PM on March 19, 2006


Also, this lawyer was not a foreigner nor a terrorist suspect and in no way should have had his house or office searched---not at all.

The law is clear and Gonzalez and the others only spoke of "foreign terror suspects".
posted by amberglow at 7:44 PM on March 19, 2006


Also, these statements in themselves are clearly actionable: ...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." ...
posted by amberglow at 7:49 PM on March 19, 2006


"Once again, Clinton's fast and loose interpretation of the law provides cover and precedent for Bush to do even worse.

Oh course, we didn't criticise Clinton, we got uncomfortable but we didn't criticize him, because he was "our guy", because after twelve years of Republican presidents, we were so desperate not to queer our chances that we were willing to overlook our own side not upholding our liberal values.

Once you give up your principles, you have nowhere left to stand."


It's no great coincidence that Billy boy is palling around with Bush the Smarter, and Hillary is playing it up just to the right of Eva Braun...
posted by stenseng at 8:00 PM on March 19, 2006


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."

"Are you spying on me?"
"Can't tell you"

Hmmmm..... I'm going to intuit a yes on that one.
posted by kaemaril at 8:13 PM on March 19, 2006


I thought the most interesting points in the article were:

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.

...followed by: ...

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."
posted by zoinks at 8:13 PM on March 19, 2006


Um, not everyone has the context here, clearly.

The key phrase above is "FOR FOREIGN INTELLIGENCE PURPOSES." The U.S. Government has always had wide latitude - WIDE latitude ...


Context? What the fuck? Who exactly do you think determines when someone or some event is in regard to so-called "foreign intelligence" ?

Let me guess, the same people who'd be likely to run afoul of the law, yes?
posted by odinsdream at 8:20 PM on March 19, 2006


the criminals, the wardens and the owners, there will be three classes of people soon
posted by edgeways at 8:55 PM on March 19, 2006


Citizen! we need to get rid of those pesky, expensive trials as those irritating little warrants have been made redundant.

We'll have your friendly neighborhood DIA/DOD/NSA representative stationed conveniently in your house. Don't mind him, he'll be in the closet we've placed behind the kitchen sink. If we can't have a representative round full-time, then we can install a telescreen. No need to get up: our operatives have already done this for you. convenience is our motto, citizen!

While we're at it, we've installed a justice tree in the backyard. You don't have a backyard, you say? We have other options: like a liberty bathtub/hairdryer combo, or freedom potassium chloride syringe.

America the beautiful. Doubleplusgood!
posted by lalochezia at 9:01 PM on March 19, 2006


doonesbury.
posted by exlotuseater at 9:50 PM on March 19, 2006


He was _horrible_. It never occurred to me that anyone could be this much worse.

The first yes, the second no, for me at least. And it's going to get a lot worse before it gets better.
posted by stavrosthewonderchicken at 11:58 PM on March 19, 2006


Wow, I guess Clinton was onboard for the enactment of bad laws. But it took the republicans to make the current legal body a tool for creating hell for Americans.

Oh well, --tic tic-- what doesn't kill you oh God the demons the fucking demons just makes you stronger I guess tic
posted by nervousfritz at 1:44 AM on March 20, 2006


Just some useful links: GNU Privacy Guard, Public Key Encryption
posted by mrbill at 1:54 AM on March 20, 2006


because after twelve years of Republican presidents, we were so desperate not to queer our chances

Bill Clinton was the best Republican president we've ever had. Why do you think the nutjobs and neo-cons hate him so?

Just some useful links: GNU Privacy Guard, Public Key Encryption.

No, no, no, NO, NO!

NEVER use public key cryptography against a government. Why? Let's say they get Fred, and his computer. Anyone who sent a message using Fred's public key is now a suspect. (If Fred was stupid enough to publicly sign documents with the private key, it's even worse.)

PGP encrypts *known traffic* -- but it also make it easy to prove that you've been communicating with someone. Just sniff your outbound connection, grab the encrypted message, and check the keyid. Governments love this -- because the main reason the want to read the traffic is to roll up the network, and PGP makes it so that they don't really need to read the traffic, just the headers. If I encrypt something with your public key, I mean for you, and only you, to read it.

So, they arrest Fred. They see you've been encrypting messages to Fred. Guess what? You are now in jail, your computer is now being searched, and anyone who has emailed you encrypted messages is next.

Then, you all get told that the number of shocks to you genitals and the number of hours you are beaten with a rubber hose is directly correlated to the speed with which you produce the secret key and the passphrase needed to open it. They've got lots of time, electricity, and rubber hose.

PGP is fine for commercial use, where everyone already knows you're talking to each other. But a cryptosystem for a resistance MUST not link the sender and receiver so trivially.
posted by eriko at 5:42 AM on March 20, 2006


we didn't criticise Clinton

What do you mean "we," Kemo Sabe? I criticized Clinton loudly and frequently during those years; people who knew me got pretty bored with my refrain of "if Democrats are going to be this bad, what's the point of keeping them around?" I wish I could feel vindicated.
posted by languagehat at 6:02 AM on March 20, 2006


Um ... didn't the Clinton administration then change FISA so that it covered physical searches, such that a warrant would be required? I.e, the clinton administration was basically saying "Yeah, under the law as written we're allowed to do that ... but we don't think we should be"? Or, put another way, Gonzales is perpetrating a lie via a sin of omission?

The Clinton administration performed physical searches without a warrant, as FISA didn't cover them at the time. Congress then amended FISA to cover physical searches as well. It was a loophole that shouldn't have been there in the first place, and Clinton shouldn't have taken advantage of it, but it wasn't technically illegal when he did it. If it had been, they probably could have gotten him removed from office.

Now, however, it most certainly is illegal, unless you apply the Yoo doctrine, which states that the President can do whatever the fuck he wants. I'm pretty sure they could start interning Muslims en masse today and nothing much would happen. Some of the Democrats would whine a little, and all the news programs would have a conservative and a liberal on to argue about whether the President could do that or not, and certain MeFi members would scornfully explain to us that not only does he have the authority to do it, but it is absolutely necessary to our nation security.
posted by EarBucket at 6:26 AM on March 20, 2006


This will set off every liberatarian/gun nut. Finally.
posted by Ironmouth at 7:10 AM on March 20, 2006


As part time libertarian and part time liberal, let me assure you: they're as pissed as you are.
posted by Richard Daly at 8:21 AM on March 20, 2006


Oh, it was illegal to break into and search the homes of Soviet agents - et.al. I mean diplomatic pouches are supposed to be inviolate and such, so it’s illegal to try to get intel that way. Not that we let that stop us - but it was illegal. *wink*

But yeah, matter of time before we’re all suspected terrorists or perhaps suspected pedophiles (given that we’re online).

(I disliked Clinton for many reasons - I did like where the country was economically though - but it was probably there because the politicians were to busy at each other’s throats and the country could do business without getting choked)

What do you mean set off? I had a nice collection of firearms before. I’m going to build an arsenal, start some fake identities, cachet some supplies, etc. etc.
posted by Smedleyman at 10:08 AM on March 20, 2006


matter of time before we’re all suspected terrorists

That's a matter of.... oh, a couple of years ago. Once "war" (without a declaration of war) is a permanent condition; once "enemy territory" is defined as everywhere, including within the United States; once anyone who criticizes the current office-holder is branded traitorous and treasonous; once the President of the United States can summon the Attorney General to retrofit laws to back up his claims that the chief executive is above the law in wartime; and once the opposition party treats one of their own senators who dares to mention censure like someone with teh AIDS; we are all suspected terrorists.
posted by digaman at 10:21 AM on March 20, 2006


"We must not confuse dissent with disloyalty. When the loyal opposition dies, I think the soul of America dies with it."
-- Edward R. Murrow

All hail the Republican Party, seeking new ways to kill the soul of America.
posted by mephron at 10:57 AM on March 20, 2006


"Terrorism is terrorism..."

Stick around for a while. You're about to see the line between "foreign terrorism" and "domestic terrorism" disappear. Then all the staggeringly stupid powers that congress and the American people have given this administration proportedly to keep them safe from foreign threats will come home to roost. All we need is one more 9-11 and what the neocons are beginning to call "the long war" will become permanent.

At this point, I will actually be surprised if there is a regular election in 2008. Scoff if you want, but mark my words.
posted by squirrel at 11:17 AM on March 20, 2006


All hail the Republican Party, seeking new ways to kill the soul of America.

All hail the Business party, seeking new ways to more properly free the avaricious and spiteful soul of America.

I'm sorry, but it goes beyond Bush, and it goes beyond Clinton. Y'all have had one hell of a scary country since about, oh, 1776.

The fact that these things can even be considered means people stopped caring a long, long time ago.
posted by poweredbybeard at 11:17 AM on March 20, 2006


alright, maybe that 'avaricious and spiteful soul' bit was over the top.

but i stand by the rest.

posted by poweredbybeard at 11:28 AM on March 20, 2006


What's next? We find out that our pets are all secret agents for the government?

Its like a never-ending cascade of lies, deceit and incompetency that half the country refuses to recognize as the steaming pile it is. I am truly amazed when I see someone with a Bush/Cheney sticker on their car (almost always an Escalade or Yukon XL single digit to the gallon land yacht). How can you possibly stand by these crooks?

What possible good do they represent?
posted by fenriq at 1:07 PM on March 20, 2006


What possible good do they represent?

If you're a wealthy white Christian US citizen whose livelihood does not depend on good relations with the rest of the world, they represent dollars in your pocket.
posted by rxrfrx at 1:19 PM on March 20, 2006


They represent the false sense of security and determination that a drunk has as he reaches for another scotch, feeling like he's king of the world.
posted by digaman at 3:16 PM on March 20, 2006


"A Pentagon intelligence agency that kept files on U.S. anti-war activists hired one of the contractors who bribed former Rep. Randy "Duke" Cunningham, R-Calif., to help it collect data on houses of worship, schools, power plants and other locations in the United States."
posted by homunculus at 3:50 PM on March 20, 2006


next we're going to find out that the contractors have been selling the info abroad as well, say, to UAE?
posted by amberglow at 7:40 PM on March 20, 2006


“If you're a wealthy white Christian US citizen whose livelihood does not depend on good relations with the rest of the world, they represent dollars in your pocket.”

Woo Hoo!
...oh, wait, Christian?
posted by Smedleyman at 2:01 PM on March 21, 2006


... and wealthy?
posted by squirrel at 10:03 PM on March 21, 2006


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