Balkinization  

Sunday, March 19, 2006

Bush Administration Claims Authority For Warrantless Physical Searches

JB

This article in U.S. News and World Report states that the Bush Administration has taken the position that the President may authorize warrantless searches of the physical premises of persons suspected of having connections to terrorism or terrorist groups.

Warrantless physical searches are "black bag jobs" in which a government operative breaks into a place without a warrant hoping to find incriminating (or otherwise useful) evidence. The best arguments for warrantless electronic surveillance do not apply to surreptitious breaking and entering. In particular, one cannot argue that going around the warrant requirement is justified by the need to amass vast amounts of electronic data in a data mining operation. Rather, the Administration simply doesn't want to have to tell anyone, much less a court of law, what it's doing, even if that involves breaking, entering and pilfering from the homes and offices of American citizens. What distinguishes law enforcement investigation from burglary and theft are procedures that hold executive officials accountable and require them to explain why their actions are necessary. Increasingly, the Administration wants to do without those essential checks on the power of the state.

And there's a second disquieting revelation: Defenders of the President's NSA program have argued that warrantless electronic surveillance should be justified despite FISA because it is used for military purposes; going around FISA does not mean that the search is illegal, but merely that the material obtained will not be admissible in subsequent criminal prosecutions. However, the same U.S. News and World Report article reports that Bush Administration officials sought to use evidence from electronic warrantless searches in criminal prosecutions without identifying the means by which it was obtained, hoping to put one over on judges.

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."

At some point, one has to stop giving the White House the benefit of the doubt about its desire to stay within the law. It's increasingly clear that we no longer have simply a good faith disagreement about the scope of Presidential power, one in which the President's lawyers somehow wind up making one implausible legal argument after another. Rather, it's a fairly deliberate strategy of concentrating power in the Executive regardless of its legality or constitutionality. In this Administration, the Bill of Rights and the rule of law are strictly optional.


Comments:

at some point in time, you have to wonder whether or not congress should investigate. at the very least, the overt failure of this administration to observe fundamental laws they have sworn to uphold should cause one to at least ask why, ask if high crimes and misdemeanors have been committed, ask whether or not this has been done systematically and deliberately, and ask if something should be done about it.

the failure of this congress to even bother asking questions, and instead to concentrate on ways that they can assist to suddenly turn violations of law into the law of the land, and then tell us that no laws have been committed, should have the rest of us asking if these members of congress should be allowed to keep their positions as well. complicity in crime is a crime itself.

this country, because of this administration, has lost its moral focus. it is up to the rest of us to regain it. with this congress, the only way they will ever do anything is if they become convinced that they will personally lose their own positions of influence and power. the time has come where we need to take a stand and let the administration and do nothing congress know that they will be held accountable, if not via constitutional procedure, then via the ballot. it's the only way there will ever be any real meaningful action from this collection of losers.
 

When Balkin says "increasingly", you should read, "consistent with the practice of the Clinton administration and previous administrations".

The "essential checks" Balkin would require have never been part of the law.

Interesting context, from then-D.A.G Jamie Gorelick's testimony to Congress on warrantless physical searches, back in 1994:

In considering legislation of this type, however, it is important to understand that the rules and methodology for criminal searches are inconsistent with the collection of foreign intelligence and would unduly frustrate the President in carrying out his foreign intelligence responsibilities.

Rule 41 of the Rules of Criminal Procedure requires a judicial warrant to search and seize (1) property that constitutes evidence of a crime; (2) contraband, that is the fruits of a crime or things otherwise illegally possessed; or (3) property designed or intended for use as the means of committing a crime. Normally, the federal officer conducting the search is required to serve a copy of the warrant on the person whose property is being searched and to provide a written inventory of the property seized.

These rules would defeat the purposes and objectives of foreign intelligence searches, which are very different from searches to gather evidence of a crime. Physical searches to gather foreign intelligence depend on secrecy. If the existence of these searches were known to the foreign power targets, they would alter their activities to render the information useless. Accordingly, a notice requirement, such as exists in the criminal law, would be fatal.

Likewise, only in extremely rare cases could a good faith representation be made that the purpose of the search was to gather evidence of a crime. In addition, because of the nature of clandestine intelligence activities by foreign powers, it is usually impossible to describe the object of the search in advance with sufficient detail to satisfy the requirements of the criminal law.

Intelligence is often long range, its exact targets are more difficult to identify, and its focus is less precise. Information gathering for policy maker and prevention, rather than prosecution, are its primary focus. Prosecution is but one of many possible options that may be pursued at a later date. The Rule 41 requirements for the purpose of the search and ultimate notice to the person searched simply cannot be squared with the clandestine nature of searches directed at foreign powers or their agents.

This fundamental difference was recognized by congress when the Foreign Intelligence Surveillance Act was enacted. In FISA, the privacy interests of individuals are protected not by mandatory notice but through in-depth oversight of foreign intelligence electronic surveillance by all three branches of government and by expanded minimization procedures.

The Department of Justice has consistently taken the position that the Fourth Amendment requires all searches to be reasonable, including those conducted for foreign intelligence purposes in the United States or against U.S. persons abroad. For the reasons I just mentioned, however, we believe that the warrant clause of the Fourth Amendment is inapplicable to such searches. We are satisfied, therefore, that Attorney General approval of foreign intelligence searches pursuant to the President’s delegation of authority in Executive order 12333 meets the requirements of the Constitution.

Pre-FISA case law relating to electronic surveillance in the Fifth, Ninth, Third, and Fourth Circuits have confirmed this view. Additionally, when the Supreme Court determined that warrant requirements applied to electronic surveillance for domestic intelligence purposes in the Keith case, it specifically declined to apply this holding to foreign powers or their agents.

There are fewer cases dealing with physical, as distinguished from electronic, searches, but it is important to recognize that, for Fourth Amendment analysis purposes, courts have made no distinction between electronic surveillances and physical searches.

There were foreign intelligence physical searches involved in the Truong case that were upheld by the Fourth Circuit in 1980. And, in 1986, the United States District Court for the Eastern District of Virginia, in an unpublished opinion in the Chin case, upheld an Attorney General authorized physical search based on the Truong case.

In a 1976 case, United States v. Ehrlichnan, the D.C. Circuit went to some lengths to point out that whatever search authority the President has can be exercised by the Attorney General, but not by other officials. The court, however, did not squarely define the extent to which the President had authority to authorize foreign intelligence searches.

In 1984, during hearings on the FISA, the Senate Intelligence Committee requested a legal opinion from the Department of Justice on the constitutionality of Attorney General approved intelligence searches. The unclassified version of this opinion was subsequently published in volume 35 of the Catholic University Law Review and concluded that the President has this inherent authority and may delegate it to the Attorney General.

As I stated earlier, we believe that existing directives that regulate the basis for seeking foreign intelligence search authority and the procedures to be followed satisfy all Constitutional requirements. Nevertheless, I reiterate the Administration’s willingness to support appropriate legislation that does not restrict the President’s ability to collect foreign intelligence necessary for the national security. We need to strike a balance that sacrifices neither our security nor our civil liberties.
 

validates the fears, shared by many, that are eloquently spelled out here by tom englehart, in his introduction to elizabeth de la vega's essay, Reprogramming the Infinite Loop:

This, after all, is the administration of adamant denials, followed by forceful non-confessions, followed by proud statements, followed by limited hang-outs, followed by even more grudging, only slightly less limited hang-outs. In that spirit, without a bit of insider information but with recent history as my guide and with consummate confidence, let me assure you that the NSA warrantless surveillance operation Elizabeth de la Vega takes up below will turn out to be anything but the limited program described in the first set of Bush administration fall-back positions. It will be a miracle if it has not swept up near-infinite American conversations, startling numbers of which won't have been conducted with overseas parties (and don't even get me started on the subject of the secret data-mining of our phone and email life); and surely, before we're done, it will turn out that this particular NSA surveillance program is only the tip of the administration's surveillance iceberg.
 

Thomas,

Your quotation from Gorelick's testimony was an interesting piece of legislative history. Your cherry-picked version of history, however, omits two rather important facts:

1) The same testimony said:

"At the outset, let me emphasize two very important points. First, the Department of Justice believes, and the case law supports, that the President has inherent authority to conduct warrantless physical searches for foreign intelligence purposes and that the President may, as has been done, delegate this authority to the Attorney General.

"Second, 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. However, whether specific legislation on this subject is desirable for the practical benefits it might add to intelligence collection, or undesirable as too much of a restriction on the President’s authority to collect intelligence necessary for the national security, depends on how the legislation is crafted." (My emphasis.

2) Congress, in fact, went on to amend FISA to include a requirement that physical searces for foreign-intelligence puproses be conducted only pursuant to a FISA warrant. (See 50 USC 1821 et seq, under "SUBCHAPTER II—PHYSICAL SEARCHES.")

Your assertion that such checks "have never been part of the law" is simply false.
 

Dear Thomas,

Exactly who did you mean to denote when you used the word "we" in the last paragraph of your comment? Are we to infer that you are employed by DOJ or the White House? And if so, how do you look at yourself in the mirror?
 

Although Thomas punctuated his post poorly, all but the first three paragraphs of his post were a block quote from Deputy AG Jamie Gorelick's 1994 testimony.

Of course, as I show above, Thomas lifted the quote out of context. He also flatly (and deliberately?) misstated the law. In fact, FISA was amended after Gorelick testified, and for the last decade has required warrants for physical searches. Her quoted congressional testimony was in the context of a hearing on that amendment when it was proposed.
 

I thought my comment was clear enough. I'd have done a better version of a block quote, if it were clear to me how to accomplish that in comments. (I'm open to suggestions.) So, no, burnsie, I'm not in any way connected to the government.

jao is certainly right that FISA, as amended, is a "law" on point, and my initial comment was sloppy insofar as the language suggests otherwise. I took Balkin's argument to be a constitutional argument, not a statutory argument, and that was the point of my reply. Balkin's point, as I see it, is exemplied by the "essential checks" bit. So it is fair to point out that the "essential checks" aren't actually part of our fundamental law (or our understanding of what the rule of law requires) in any way, and have never been thought to be.

Balkin's argument doesn't work, because, under the law, these physical searches are indistinguishable from the electronic searches in the much-discussed NSA program. The arguments regarding statutory interpretation and constitutional separation of powers are the same, and there's no need to reargue them here. (Perhaps not entirely the same--it is conceivable that the separation of powers arguments could turn on the particular facts, but since we don't have any particular facts, close enough.)
 

Balkin's argument doesn't work, because, under the law, these physical searches are indistinguishable from the electronic searches in the much-discussed NSA program.

I'm not convinced you've made a case for this. There are some important distinctions which are not clear from your Gorelick quote:

1. The difference between (a) US citizens in the US and (b) foreign agents.

2. The difference between 4th Amendment restrictions and statutes.

To repeat JaO's point, Gorelick's position was NOT that Congress couldn't legislate limits on presidential authority -- she expressly said it could -- but that such limits would be unwise. This testimony not only fails to support the Bush position, it entirely negates it.

The 4th A issue is trickier, partly because it's hard to know who's being searched and under what circumstances. If, however, the current Administration believes that it can conduct warrentless searches against US citizens inside the US, Gorelick's testimony does not appear to support that -- her reference is to searches "conducted for foreign intelligence purposes in the United States or against U.S. persons abroad."
 

mark field: To repeat JaO's point, Gorelick's position was NOT that Congress couldn't legislate limits on presidential authority -- she expressly said it could -- but that such limits would be unwise.

I don't think Gorelick even went that far. She merely warned that such limits could be unwise, depending on how they were structured.

But I agree with your key point: The Clinton administration raised no constitutional objection to the FISA expansion. Of course, President Clinton signed the final version of the FISA amendment, IIRC.
 

Professor Balkin's headline and introductory paragraph are shockingly misleading.

He says, "Bush Administration Claims Authority For Warrantless Physical Searches ... [T]he Bush Administration has taken the position that the President may authorize warrantless searches of the physical premises of persons suspected of having connections to terrorism or terrorist groups."

The article does not support Professor Balkin's claim. The article (1) alleges that Bush Administration "raised the issue" in September 2001, and (2) cites a former DOJ official who suggests that arguments in favor of the NSA program are also intended to set up a justification for such a program.

That's a far cry from demonstrating that the Bush Administration has taken a position on the issue, much less than that such searches have occurred. Indeed, the article also says (1) that the FBI says that no such operations have been conducted, and (2) that there is no evidence that the Bush Administration has cited the legal authority to to carry out such searches.

Finally, I note that even if it turns out that the searches occurred and that the White House cites the authorities as suggested, let's not rush to equate such warrantless searches with a violation of the Constitution. In the end, searches will be judged for reasonableness per the Fourth Amendment, and the global war on terror may very well make reasonable what would not be reasonable in the context of ordinary criminal prosecutions. Breathless posts like Professor Balkin's latest effort simply do nothing to evaluate the issue in useful, insightful fashion.
 

Just to clarify, I don't mean to suggest that Professor Balkin alleges that such searches have occurred. I just included that aside as a note to any one who draw that conclusion.
 

Professor Balkin's headline and introductory paragraph are shockingly misleading.

He says, "Bush Administration Claims Authority For Warrantless Physical Searches ... [T]he Bush Administration has taken the position that the President may authorize warrantless searches of the physical premises of persons suspected of having connections to terrorism or terrorist groups."

The article does not support Professor Balkin's claim.


I just re-read the article and it appears to me to say just what Prof. Balkin claims. A couple of quotes:

"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 U.S. 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.'"

"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.'"

The article may be right and it may be wrong, but Prof. Balkin did not mischaracterize it.

the global war on terror may very well make reasonable what would not be reasonable in the context of ordinary criminal prosecutions.

This seems to be the crux of the dispute. Apparently we have devolved from "Give me liberty or give me death!", to "Here are all my liberties, just don't let the oogly booglies get me!".
 

If you need a primer on these, may I recommends/advertize this.
 

Mark,

First, I simply do not see how Professor Balkin's statement, "Bush Administration Claims Authority for Warrantless Physical Searches," can be squared with the article that stated, "It could not be learned whether the Bush administration has cited the legal authority to carry out such searches."

Second, the paragraphs you cite, if true, only show that (A) Administration officials raised the issue in internal discussions, and (B) one observer believes that the arguments used in support of the NSA program are laying the groundwork for the defense of physical searches. Again, neither of those points supports a statement that the "Bush Administration Claims Authority for Warrantless Physical Searches".

Quite frankly, what has happened is that Professor Balkin has breathlessly misinterpreted the US News article as saying more than it actually says. He ought to just correct the headline and, to the extent that it's inconsistent with the article, the remainder of his post.

Given the final paragraph of his post, I think that his errors are quite plainly the result of his rush to criticize the President. His haste has resulted in a blatantly incorrect description of the US News article to which he links.
 

Mark,

As for your last point --

This seems to be the crux of the dispute. Apparently we have devolved from "Give me liberty or give me death!", to "Here are all my liberties, just don't let the oogly booglies get me!".

-- your colorful language doesn't hide the question-begging. We need to establish what "liberties" we have. In this case, we judge it by looking to the Fourth Amendment (which itself points to "reasonableness"). I dare say that the reasonableness of the searches described in the article has yet to be adjudicated by the courts. Just as exigent circumstances may make "reasonable" a search or seizure that would in other circumstances by "unreasonable," the present facts may make "reasonable" what is in other contexts "unreasonable."

If the Framers and Ratifiers wanted to protect us against *all* searches and seizures, or even just *all warrantless* searches and seizures, they would have. To recognize that they haven't and to apply that recognized truth in the current context is not to "throw away our liberties."
 

I simply do not see how Professor Balkin's statement, "Bush Administration Claims Authority for Warrantless Physical Searches," can be squared with the article that stated, "It could not be learned whether the Bush administration has cited the legal authority to carry out such searches."

I think it can be squared with the passage which I quoted: "the lawyers talked with senior FBI officials about using the same legal authority to conduct physical searches of homes and businesses of terrorism suspects".

Second, the paragraphs you cite, if true, only show that (A) Administration officials raised the issue in internal discussions ... Again, neither of those points supports a statement that the "Bush Administration Claims Authority for Warrantless Physical Searches".

If I understand you, you are distinguishing between

1. A formal [public] claim of authority; and
2. Internal discussions in which lawyers apparently tried to convince the FBI to use the same authority that supposedly supported the wireless surveillance.

I don't accept this distinction, for at least two reasons. First, the Administration's penchant for secrecy on these issues means that we have no way of knowing how far they pushed the search argument. There may even, for all we know, have been such searches. They hardly would have made a public claim if they were intent on covering up a program of warrantless searches.

Second, even if the discussions were purely internal, I think it's fair to say that they "claimed authority". Maybe they backed off that claim later; in that case, the article was misleading but Prof. Balkin's summary was not, unless you're only criticizing a present tense verb.

Just as exigent circumstances may make "reasonable" a search or seizure that would in other circumstances by "unreasonable," the present facts may make "reasonable" what is in other contexts "unreasonable."

I don't disagree with this in principle, I disagree with its application to current world affairs. I personally have lived through a Cold War with hundreds, perhaps thousands, of nuclear warheads pointed at us; two major hot wars; an era of historically high domestic crime rates; and a series of terrorist actions including airplane hijackings, all without the need for warrantless searches. I simply don't believe the current world situation is "more exigent" than what we've proved we can handle with liberties intact.
 

Mark,

So you're saying that "[Administration] lawyers talked with senior FBI officials about using the same legal authority to conduct physical searches" is synonymous with "[the] Administration claim[ed] authority for warrantless physical searaches"?

I'm sorry, but that's ludicrous. Administration lawyers raise all sorts of issues in internal discussions -- are you suggesting that every position suggested by an Administration attorney is therefore "claimed" by the Administration? In that case, then the Bush Administration has "claimed" both sides of every issue in the Guantanamo debate, according the news coverage outlining the contradictory positions espoused, in-house, by the Yoo and Goldsmith camps.

At the most rudimentary grammatical level, the argument makes no sense. The verbs -- "claim[ed]" versus "talked ... about using" -- plainly are not synonymous.

Are we so eager to indict (impeach?) the Bush Administration that we're willing to take such convoluted positions? Honestly, there are important issues to debate in this (as they're doing at Yale this weekend), but nonsense like this does nothing to further the debate. Critics undermine their own credibility when they fall back on hokey allegations like these.
 

So you're saying that "[Administration] lawyers talked with senior FBI officials about using the same legal authority to conduct physical searches" is synonymous with "[the] Administration claim[ed] authority for warrantless physical searaches"?

Yes. The clear implication of the article was that they were pushing the FBI to agree to conduct searches on that basis. It was NOT a brainstorming sesssion, it was pressure: "FBI Director Robert Mueller was alarmed by the proposal, the two officials said, and pushed back hard against it." Other quotes from the article suggest a similar dynamic.

I don't see any reason to doubt that the article reflects the Administration's actual claims. After all, the Constitutional arguments regarding physical searches and wiretaps are similar; once you take the position that warrantless wiretaps meet 4th A standards, it's hard, though not impossible, to make the distinction for physical searches under current case law.*

Just curious -- has the Administration denied that they take such a position wrt physical searches? I know Gonzales dodged Leahy's questions about that in the Judiciary Committee hearings, but I haven't seen any other statements on that subject.

*I'm leaving aside statutory issues here, obviously, as well as the fact that the specific details of any search will affect its validity under the 4th A.
 

Mark,

So, again, you're saying that any issue "raised" by more than one Administration lawyer in the context of internal discussions constitutes a position "claimed" by the Administration?

As I illustrated with the Yoo-Goldsmith debate, that position is plainly ludicrous.
 

So, again, you're saying that any issue "raised" by more than one Administration lawyer in the context of internal discussions constitutes a position "claimed" by the Administration?

No, that's not my position. My position is that the article referenced strongly infers that the Administration did "claim" a particular position wrt physical searches. I'm NOT arguing that the article is true or correct, though I suspect it is. I AM arguing that the lead-in did not misrepresent the article.
 

At best, the article demosntrates that a couple of lawyers raised (or, to be generous, "claimed") such authority in the context of intra-Administration talks. If that is equivalent to "the Administration" "claiming" such authority, then the terms "the Administration" and "claiming" are for all practical purposes meaningless.

The article doesn't draw such conclusions. Neither should its readers, including you and Professor Balkin.
 

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