You know you’re in Bizarro World when the last barricade between tyranny and liberty is … the director of the FBI.
Chitra Ragavan writes in the March 27 issue of U.S. News and World Report:
In the dark days after the Sept. 11, 2001, terrorist attacks, a small group of lawyers from the White House and the Justice Department began meeting to debate a number of novel legal strategies to help prevent another attack. Soon after, President Bush authorized the National Security Agency to begin conducting electronic eavesdropping on terrorism suspects in the United States, including American citizens, without court approval. 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.”
FBI Director Robert Mueller was alarmed by the proposal, the two officials said, and pushed back hard against it. “Mueller was personally very concerned,” one official says, “not only because of the blowback issue but also because of the legal and constitutional questions raised by warrantless physical searches.”
An FBI spokesman told US News that the FBI has not conducted physical searches without consent or a court order. However, it is apparent that the Bush Administration thinks it can conduct physical searches without consent or a court order.
… 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.” …
…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.”
TalkLeft reminds us that the U.S. engaged in physical monitoring of radiation levels mosques and homes without warrants. This monitoring sometimes required the agents involved to go on the property being monitored, which makes one suspect “radiation levels” was a smokescreen. The targets were almost all U.S. citizens.
(Reminds me of at least one Law & Order episode in which the cops want to enter an apartment but don’t have a warrant. Lenny says, “Do you smell gas?” And they break the door down to check for a gas leak but are really looking for the gun used in a homicide. Having to wait for a warrant does slow down the plot.)
U.S. News says that (once again) the Bushies site the famous Gorelick testimony from the Aldrich Ames hearings as their precedent for warrantless searches without noticing that after these hearings Congress changed the FISA provisions so that what was done without warrants then couldn’t be done any more. In other words, the Bushies are violating law that didn’t exist when the Clintons were checking out Aldrich Ames. The Clinton Administration adhered to FISA law as it existed at the time.
But how weird is it that the “strict constructionists” who just hate it when Supreme Court justices “make law” think that it’s fine for a a former deputy attorney general in the Clinton administration to “make law”?
Clearly, the Bushies put FBI director Mueller on the spot.
A former marine, Mueller has waged a quiet, behind-the-scenes battle since 9/11 to protect his special agents from legal jeopardy as a result of aggressive new investigative tactics backed by the White House and the Justice Department, government officials say. During Senate testimony about the NSA surveillance program, however, Gonzales was at pains to avoid answering questions about any warrantless physical surveillance activity that may have been authorized by the Justice Department. On February 6, Patrick Leahy, the ranking Democrat on the Judiciary Committee, asked Gonzales whether the NSA spying program includes authority to tap E-mail or postal mail without warrants. “Can you do black-bag jobs?” Leahy asked. Gonzales replied that he was trying to outline for the committee “what the president has authorized, and that is all that he has authorized”–electronic surveillance. Three weeks later, Gonzales amended his answer to Leahy’s question, stating that he was addressing only the legal underpinnings for the NSA surveillance program but adding: “I did not and could not address operational aspects of the program, or any other classified intelligence activities.” In the past, when Congress has taken up explosive issues that affect the bureau, Mueller has made it a point, officials have said, to leave Washington–and sometimes the country–so as not to get pulled into the political crossfire. When Gonzales testified February 6, Mueller was on his way to Morocco.
The FBI gets a bit twitchy about black bags.
For the FBI, the very mention of the term “black-bag jobs” prompts a bad case of the heebie-jeebies. In 1975 and 1976, an investigative committee led by then Sen. Frank Church documented how the FBI engaged in broad surveillance of private citizens and members of antiwar and civil rights groups, as well as Martin Luther King Jr. The committee’s hearings and the executive-branch abuses that were documented in the Watergate investigation led to numerous reforms, including passage of the Foreign Intelligence Surveillance Act in 1978. The law created a special secret court tasked with approving electronic wiretaps in espionage and other national security investigations. After the Aldrich Ames spy case, Congress amended FISA to include approval of physical searches. After 9/11, the law was further amended to allow investigators to place wiretaps or conduct physical searches without notifying the court for 72 hours and to obtain “roving” wiretaps to allow investigators to tap multiple cellphones.
Of course, that’s not flexible enough for the Bushies. But then there’s the little problem of trying to get convictions with illegal evidence:
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.”
So what the hell is the point if you can’t get convictions?
Mueller has been criticized by some agents for being too close to the White House. His predecessor, Louis Freeh, made his break publicly from President Clinton, even returning his White House security access badge. Until recently, Mueller reported to the White House daily to brief Bush and Cheney. But Mueller has not shied away from making tough decisions. He refused to allow FBI agents to participate in CIA and Defense Department interviews of high-value prisoners because of the administration’s use of aggressive interrogation techniques. In Iraq and at the Pentagon-run camp for terrorism suspects at Guantanamo Bay, Cuba, it has been FBI agents who have called attention to what they viewed as abuse of detainees.
It is unclear how much resistance from the FBI the White House and the Justice Department will be willing to brook. What is clear, however, is the extraordinary extent to which officials in both places inject themselves in the bureau’s operations. In late 2004, President Bush asked then FBI Deputy Director Bruce Gebhardt, filling in for Mueller during the daily White House briefings, minute details about a suspected terrorism threat in Kansas. “Don’t worry, Mr. President,” responded Gebhardt, straight-faced. “We have Kansas surrounded.”
Chitra Ragavan also discusses the subject of a terrorism investigation who believes he was “black bagged.” For example, the subject had some run-ins with a man on his property who claimed to be part of a cleaning crew but who was, in fact, not cleaning.
On Friday’s Countdown, Keith Olbermann discussed the US News story with legal scholar Jonathan Turley. You can view the clip or read part of the transcript at Crooks and Liars. Sample:
Olbermann: (reading from a U.S. News & World Report press release) “Soon after the September 11, 2001 terror attacks, lawyers in the White House and the Justice Department argued that the same legal authority that the same legal authority that allowed warrentless electronic surveillance inside the US, could also be used to justify physical searches of terror suspects homes & businesses without court approval.”
Olbermann: Doesn’t that send chills down your spine?
Turley: Well it does. It’s horrific, because what that would constitute is to effectively remove the 4th Amendment from the U.S. Constitution and the fact that it was so quick as a suggestion shows the inclinations, unfortunately, of this administration. It treats the Constitution as some legal technicality instead of the thing were trying to fight to protect. …
… This is something to be very concerned about. These are not trivial matters. We’ve seen a sort of broad-based assault on basic Constitutional rights in our country since 9/11. We have a President who ordered electronic surveillance by the NSA without warrants in something that constitutes a federal crime. Congress isn’t even holding serious hearings on that. So we have a system that has checks & balances but none of them seem to be working. At the same time, as we noted earlier, we have an attack on the Judiciary itself, all of this should present a picture of concern for any American.
If I see anyone from the Right expressing concern about this matter (instead of expressing outrage at us lefties for hating America), I’ll let you know. Don’t hold your breath.