Balkinization: Bush Administration Claims Authority For Warrantless Physical Searches

Bush Administration Claims Authority For Warrantless Physical Searches

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.

Posted 3:21 PM by JB [link]

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.

# posted by

phg : 7:54 PM

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.

# posted by

manonfyre : 1:06 AM

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."

# posted by

Mark Field : 11:38 AM

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!".

# posted by

Mark Field : 3:50 PM

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.

# posted by

Mark Field : 7:54 PM

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.

# posted by

Mark Field : 12:17 AM

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.

# posted by

Mark Field : 11:24 AM