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March 21, 2006

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Welcome to 1984....We used to think it was just a Sci-Fi novel...Can Brave New World be very far off???

and says that David Addington pressured the FBI to use information gained from the NSA surveillance program in court without disclosing its source.

This was what was really stunning to me about that article. Part of the so-called justfication for these sorts of things is along the lines of "if you're not going to use the evidence gained from such a warrantless search in a court of law, the search is 'reasonable' under the 4th Amendment."

Not only were they discussing use of such searches (and I find it hard to believe that they have not actually done such a search, especially in the immediate aftermath of 9/11), but they were going to use the evidence in court and not disclose its origin. This is, really, fundamentally antithetical to the system of justice in this country. To conduct secret, warrantless, physical searches to collect evidence against suspects, then use such evidence in court without disclosing how it was obtained, in violation of the suspect's rights, and leave it up to the suspect's attorney to guess that some of it had been collected by a highly-classified program in order to object to its admission into evidence.

This, along with the NSA scandal, will cast a pall over all federal terrorism prosecutions. It will likely reach even beyond terrorism cases as we all know too well, such tools generally are not limited to such cases (e.g., if I was a defense attorney in a federal drug case, I would be curious to know if any evidence was obtained in this manner; the problem being, how can I believe the US Attorney when he says "no" as he might himself have no idea how the evidence was gathered).

In sum, it amounts to "we'll knowingly violate the defendant's rights and hope he doesn't find out before conviction" method of "law"-enforcement.

They might as just move on to totally fabricated evidence and get it over with, this slow-creep is really annoying.

Leaving aside the statutory question, what's so horrible about warrantless searches? The Constitution doesn't require a warrant in all cases, after all; it requires only that searches be "reasonable."

That's why Andy McCarthy could compile the following list of cases in which the Supreme Court has approved governmental power:

Detain American citizens for investigative purposes without a warrant;

Arrest American citizens, based on probable cause, without a warrant;

Conduct a warrantless search of the person of an American citizen who has been detained, with or without a warrant;

Conduct a warrantless search of the home of an American citizen in order to secure the premises while a warrant is being obtained;

Conduct a warrantless search of, and seize, items belonging to American citizens that are displayed in plain view and that are obviously criminal or dangerous in nature;

Conduct a warrantless search of anything belonging to an American citizen under exigent circumstances if considerations of public safety make obtaining a warrant impractical;

Conduct a warrantless search of an American citizen's home and belongings if another person, who has apparent authority over the premises, consents;

Conduct a warrantless search of an American citizen's car anytime there is probable cause to believe it contains contraband or any evidence of a crime;

Conduct a warrantless search of any closed container inside the car of an American citizen if there is probable cause to search the car — regardless of whether there is probable cause to search the container itself;

Conduct a warrantless search of any property apparently abandoned by an American citizen;

Conduct a warrantless search of any property of an American citizen that has lawfully been seized in order to create an inventory and protect police from potential hazards or civil claims;

Conduct a warrantless search — including a strip search — at the border of any American citizen entering or leaving the United States;

Conduct a warrantless search at the border of the baggage and other property of any American citizen entering or leaving the United States;

Conduct a warrantless search of any American citizen seeking to enter a public building;

Conduct a warrantless search of random Americans at police checkpoints established for public-safety purposes (such as to detect and discourage drunk driving);

Conduct warrantless monitoring of common areas frequented by American citizens;

Conduct warrantless searches of American citizens and their vessels on the high seas;

Conduct warrantless monitoring of any telephone call or conversation of an American citizen as long as one participant in the conversation has consented to the monitoring;

Conduct warrantless searches of junkyards maintained by American citizens;

Conduct warrantless searches of docks maintained by American citizens;

Conduct warrantless searches of bars or nightclubs owned by American citizens to police underage drinking;

Conduct warrantless searches of auto-repair shops operated by American citizens;

Conduct warrantless searches of the books of American gem dealers in order to discourage traffic in stolen goods;

Conduct warrantless drug screening of American citizens working in government, emergency services, the transportation industry, and nuclear plants;

Conduct warrantless drug screening of American citizens who are school officials;

Conduct warrantless drug screening of American citizens who are school students;

Conduct warrantless searches of American citizens who are on bail, probation or parole.

Point being, if you're worried about warrantless searches, you have about two dozen things that are potentially more worrying than anything the Bush administration has done on that front.

This was what was really stunning to me about that article.

David Addington has lost the power to stun me. He and John Yoo must have crawled out from beneath the same rock.

Anderson,

I agree. Just as this Administration's determination to find places for John Poindexter and Elliott Abrams was a warning sign for me, so will a future Republican administration's determination to hire John Yoo and David Addington be.

Niels,
Imagine that we number all of the points that you cut and pasted from McCarthy (27, I think). Which ones do you think are the most important for justifying the Bush administration's arguments and why? Which (if any) do you think are irrelevant? Or are you arguing that a single warrantless search permits all warrantless searches? If so, why?

LJ: The point is that 1) warrantless searches are nothing new; they happen all the time for reasons that pale in comparison to the prevention of terrorist activity; 2) under the Constitution, many types of warrantless searches are approved because they are "reasonable" in the circumstances; and 3) it therefore makes little sense for people to use the term "warrantless search" as if this were a scarily unprecedented invention on the part of the Bush administration, much less as if "warrantless searches" were the last stage before the government began ordering "summary executions."

Also, LJ, this item seems to be relevant to the NSA scandal at least: "Conduct a warrantless search — including a strip search — at the border of any American citizen entering or leaving the United States." If the government can strip search you at the border, why couldn't it have a computer algorithm examine your cross-border phone calls to see whether they display patterns typical of international terrorists (particularly if you are known to have communicated with Al Qaeda before)?

That's not to say that the NSA spying was legal or wise or responsible or any of those things. It's to say that the NSA spying strikes me as considerably LESS intrusive than some government searches that already have been approved by the Supreme Court. It's also to say that some of the outrage over the NSA scandal seems phony to me: Where have all the NSA critics been over the past several decades as the Supreme Court, time and time again, approved warrantless searches in a wide variety of circumstances that are all less pressing than preventing terrorism?

The point is that 1) warrantless searches are nothing new; they happen all the time

"Rights? What rights? You never had any rights before Bush, why are you begging for them now?"

"Where have all the NSA critics been over the past several decades as the Supreme Court, time and time again, approved warrantless searches in a wide variety of circumstances that are all less pressing than preventing terrorism?"

I only speak for myself, but this critic has been addressing these issues, and objecting to many of these decisions, since the late Sixties. And so has the ACLU, and plenty other of the current critics. Duh.

1. Detain American citizens for investigative purposes without a warrant;

Where is the search? Irrelevant.

2. Arrest American citizens, based on probable cause, without a warrant;

Meets the probable cause standard for issuing a warrant. Redundant.

3. Conduct a warrantless search of the person of an American citizen who has been detained, with or without a warrant;

What is the difference between this and 1.?

4. Conduct a warrantless search of the home of an American citizen in order to secure the premises while a warrant is being obtained;

Warrant issued. Irrelevant.

5. Conduct a warrantless search of, and seize, items belonging to American citizens that are displayed in plain view and that are obviously criminal or dangerous in nature;

Meets the probable cause standard for issuing a warrant. Redundant.

6. Conduct a warrantless search of anything belonging to an American citizen under exigent circumstances if considerations of public safety make obtaining a warrant impractical;

A true exception to the warrant requirement, bravo. Irrelevant to cases under consideration where exigent circumstances are not present.

7. Conduct a warrantless search of an American citizen's home and belongings if another person, who has apparent authority over the premises, consents;

Fourth amendment rights are waiveable. Irrelevant.

7. Conduct a warrantless search of an American citizen's car anytime there is probable cause to believe it contains contraband or any evidence of a crime;

Meets the probable cause standard for issuing a warrant. Redundant.

8. Conduct a warrantless search of any closed container inside the car of an American citizen if there is probable cause to search the car — regardless of whether there is probable cause to search the container itself;

Meets the probable cause standard for issuing a warrant (IIRC). Redundant.

9. Conduct a warrantless search of any property apparently abandoned by an American citizen;

I am unfamiliar with this one.

10. Conduct a warrantless search of any property of an American citizen that has lawfully been seized in order to create an inventory and protect police from potential hazards or civil claims;

Lawful seizure meets probable cause standard. Redundant.

11. Conduct a warrantless search — including a strip search — at the border of any American citizen entering or leaving the United States;

4th amendment inapplicable (IIRC) on border entry. Irrelevant.

12. Conduct a warrantless search at the border of the baggage and other property of any American citizen entering or leaving the United States;

Same as 11. Redundant.

13. Conduct a warrantless search of any American citizen seeking to enter a public building;

Fourth amendment rights are waiveable. Irrelevant.

14. Conduct a warrantless search of random Americans at police checkpoints established for public-safety purposes (such as to detect and discourage drunk driving);

True exception and, IMHO, bad precedent.

15. Conduct warrantless monitoring of common areas frequented by American citizens;

"Monitoring" /= search. Irrelevant.

16. Conduct warrantless searches of American citizens and their vessels on the high seas;

Same as 11. Redundant.

17. Conduct warrantless monitoring of any telephone call or conversation of an American citizen as long as one participant in the conversation has consented to the monitoring;

One participant could testify to conversation in court of law. Irrelevant.

18. Conduct warrantless searches of junkyards maintained by American citizens;

Unfamiliar with this one.

19. Conduct warrantless searches of docks maintained by American citizens;

Unfamiliar with this one, but likely same as 18.

20. Conduct warrantless searches of bars or nightclubs owned by American citizens to police underage drinking;

Public space. Irrelevant.

21. Conduct warrantless searches of auto-repair shops operated by American citizens;

Unfamiliar with this one, but likely same as 18.

22. Conduct warrantless searches of the books of American gem dealers in order to discourage traffic in stolen goods;

Unfamiliar with this one, but likely same as 18.

23. Conduct warrantless drug screening of American citizens working in government, emergency services, the transportation industry, and nuclear plants;

Fourth amendment rights are waiveable. Irrelevant.

24. Conduct warrantless drug screening of American citizens who are school officials;

Fourth amendment rights are waiveable. Irrelevant.

25. Conduct warrantless drug screening of American citizens who are school students;

Fourth amendment rights are waiveable. Irrelevant.

26. Conduct warrantless searches of American citizens who are on bail, probation or parole.

Meets the probable cause standard for issuing a warrant. Redundant. Lesser punishments necessary included.

So by my count you have about five exceptions to the warrant requirement listed here. But all of that is irrelevant to the "black bag" searches where, by reasonable interpretation of Addington's own (reported) arguments, (a) the warrant requirement applies; (b) the U.S. should violate it in obtaining evidence; (c) the U.S. should then use that evidence in an attempt to obtain a conviction in a court of law; (d) the U.S. should not tell the defendant or his/her attorney.

So, am I concerned that there are exceptions to the warrant requirement not applicable here? Yes. But I am more concerned in cases that the administration concedes that there is no exception to the warrant requirement, doesn't obtain a warrant, and uses the evidence in court without informing the defense.

Niels,
My questions asked for some analysis on your part so we could find some common ground or, failing that, at least clarify the discussion. It is not at all clear, but from your second response, you seem to feel that strip searching at the border is something that gives the government the right to conduct warrantless searches anywhere. Yet you ignore the fact that borders are a powerful demarcation. In fact, if you were on the opposite side of a border, and you shot someone dead, the officials on the opposite side would have no authority whatsoever to arrest you. Even if the person you shot were on the other side of the border. That US officials have more expansive rights to conduct searches when people cross such a border could be considered to be related to this.

That you take this example as justifying all warrantless searches suggests that you have not taken any time to carefully consider the question, but are merely cutting and pasting a list that you think provides a knockdown argument without actually even considering precisely what argument is being made. Such hackishness is depressing, but not surprising.

Niels: personally, I have been protesting against some of these things for decades, not just years, as has the ACLU, of which I am a card-carrying member. That said, I don't think a lot of the stuff on your list is relevant, for basically the reasons given by ugh. When a warrant has been issued, or when there is no reasonable expectation of privacy, or when someone waives a right that they're entitled to waive, there's no problem. (I think this covers the 'abandoned' issue, if you're talking about stuff I put out with the trash, for instance.) I do have problems with random searches at checkpoints, and have, as I said, been writing letters about them to my congresspeople for ages.

I find the reliance on the border exception particularly annoying, because it has that vague perception of applicability, while being as a matter of law completely inapplicable.

as anyone who has done any actual research on the issue can tell you, customs agents have the power to search persons and things at the border because the executive branch of every nation asserts and has historically always asserted the right to prevent contraband from entering its country. There is no expectation of privacy at the border in your things. thus the search is reasonable.

by contrast, you do have an expectation of privacy in your speech which crosses international boundaries. the customs office has not had the power to READ your mail arguably ever and certainly not in modern times. Both the First Amendment and the Fourth Amendment attach to the contents of your communications across international boundaries.

hence FISA.

for a party that used to represent the ideals of law and order, the republicans are doing a fine job of ignoring the law when it proves inconvenient.

When a warrant has been issued, or when there is no reasonable expectation of privacy, or when someone waives a right that they're entitled to waive, there's no problem. (I think this covers the 'abandoned' issue, if you're talking about stuff I put out with the trash, for instance.)

Ah, "no reasonable expectation of privacy" covers the abandonment, junkyards, docks and auto-repair shops exceptions, dispelling my ignorance above. Thanks hilzoy.

Note: There are a lot of items on the list indicating that warrantless searches are allowed of: students, officials, workers in particular industries. Ugh's "analysis" of such instances merely notes that Fourth Amendment rights are "waiveable." I suppose the notion is that if you (as a 14-year-old) choose to become a "student," you thereby waive your Fourth Amendment rights. Same if you choose to work in certain industries.

OK: So if you choose to make international calls to people who are linked in some way to Al Qaeda, or if you choose to use word patterns that a computer algorithm perceives as typical of terrorists, you have "waived" your Fourth Amendment rights just as much as a public school student. How do you like that? That waiver argument makes as much sense as any of Ugh's waiver arguments.

Also note that there are a few items involving border crossings or Americans on the high seas. It could be argued that if you -- as a physical person -- lose your Fourth Amendment rights as soon as you cross the border, then so do your phone calls. Are you saying that's OK?

Finally, I didn't understand this series at all:

18. Conduct warrantless searches of junkyards maintained by American citizens;

Unfamiliar with this one.

19. Conduct warrantless searches of docks maintained by American citizens;

Unfamiliar with this one, but likely same as 18.

* * *
21. Conduct warrantless searches of auto-repair shops operated by American citizens;

Unfamiliar with this one, but likely same as 18.

22. Conduct warrantless searches of the books of American gem dealers in order to discourage traffic in stolen goods;

Unfamiliar with this one, but likely same as 18.

What the heck do you mean, same as 18? All you said for 18 was "unfamiliar with this one." (If you're unfamiliar with those cases, you should look up Colonnade, Biswell, and Burger v. United States, as well as other cases citing those precedents.)

LJ: Niels, . . . It is not at all clear, but from your second response, you seem to feel that strip searching at the border is something that gives the government the right to conduct warrantless searches anywhere. . . . That you take this example as justifying all warrantless searches suggests that you have not taken any time to carefully consider the question . . . .

Read carefully. Did I say or imply or give the slightest hint that the government should have the "right to conduct warrantless searches anywhere"? No. What I said was that the Constitution indisputably does not require a warrant as a general matter. It says: If you get a warrant, it has to be based on probable cause. And if you do a search, that search has to be reasonable. In lots and lots of cases, courts have held that searches can be "reasonable" without a warrant.

Thus, it simply won't do to say "warrantless searches" as if you're talking about "cruel and unusual punishment" or bans on religious expression or anything that the Constitution actually does forbid. You have to go further and explain why the search was unreasonable. It would be even more helpful if you could explain why the search at issue is unreasonable *in comparison to* various searches that have been upheld (such as drug tests for public school students).

LJ: Niels, . . . It is not at all clear, but from your second response, you seem to feel that strip searching at the border is something that gives the government the right to conduct warrantless searches anywhere. . . . That you take this example as justifying all warrantless searches suggests that you have not taken any time to carefully consider the question . . . .


Read carefully. Did I say or imply or give the slightest hint that the government should have the "right to conduct warrantless searches anywhere"? No. What I said was that the Constitution indisputably does not require a warrant as a general matter. It says: If you get a warrant, it has to be based on probable cause. And if you do a search, that search has to be reasonable. In lots and lots of cases, courts have held that searches can be "reasonable" without a warrant.

Thus, it simply won't do to say "warrantless searches" as if you're talking about "cruel and unusual punishment" or bans on religious expression or anything that the Constitution actually does forbid. You have to go further and explain why the search was unreasonable. It would be even more helpful if you could explain why the search at issue is unreasonable *in comparison to* various searches that have been upheld (such as drug tests for public school students).

End italics:

OK: So if you choose to make international calls to people who are linked in some way to Al Qaeda, or if you choose to use word patterns that a computer algorithm perceives as typical of terrorists, you have "waived" your Fourth Amendment rights just as much as a public school student. How do you like that? That waiver argument makes as much sense as any of Ugh's waiver arguments.

You cannot seriously have just made that analogy...

The only thing wrong with the analogy is that public school students ought to have quite a bit more privacy than people who make international phone calls to numbers that are linked to Al Qaeda.

* * *

Let me add that I emphatically disagree with David Addington's position, assuming that it has been accurately reported: "David Addington pressured the FBI to use information gained from the NSA surveillance program in court without disclosing its source."

Also, "Anarch," another point is that public school students have certainly not "waived" their Fourth Amendment rights merely by showing up to school, as they are legally required to do. Yet "Ugh" dismissed their Fourth Amendment claims as waived. So if public school students "waive" Fourth Amendment rights by attending school under legal compulsion, then anybody who does anything could be said to have "waived" Fourth Amendment rights -- certainly people who make international calls of their own free will.

Just to be sure, let me explain even further: My point is NOT that people actually DO waive Fourth Amendment rights. My point is that Ugh's repeated reliance on waiveability was stupid. I'm making a reductio ad absurdum argument.

The Supremes had more to say this morning about warrantless searches, by the way.

Niels: So if you choose to make international calls to people who are linked in some way to Al Qaeda, or if you choose to use word patterns that a computer algorithm perceives as typical of terrorists, you have "waived" your Fourth Amendment rights just as much as a public school student. How do you like that?

Not a bit. 'Linked in some way to Al Qaeda': a way that is up to this regime to decide? Like the 450 men rotting in Guantanamo for the last four years who are 'linked in some way to Al Qaeda?

As for 'choose to use word patterns that a computer algorithm perceives as typical of terrorists', we've now reached 1984-land. As if I have any idea what word patterns a computer algorithm perceives as typical of terrorists and would therefore be able to choose not to use them!

No, sorry. If the government wants to listen to my phone calls, domestic or international, they need a warrant. Period.

Posted that before refreshing, missed Niels' explanation that it was a reductio ab absurdum argument. Sure was.

Just a short note to thank Niels for responding, though I tend to think that "I'm making a reductio ad absurdum argument." suggests that a requirement for warrants is absurd. It's not a question of reading comprehension, just a question of employing that type of argumentation. This thread has moved down quite a bit, but I will ask again, where do you draw the line for the requirement of warrants?

Got around to a belated link here, by the way.

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