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Report: Warrantless Searches Advocated After 9/11

U.S. News & World Report, according to its press release read on-air Friday night by MSNBC's Keith Olbermann, will report on its website Saturday night that Bush Administration lawyers advocated the President had the power to authorize warrantless physical searches two weeks after September 11, using the same arguments adopted by Bush for his NSA warrantless surveillance program.

Crooks and Liars has the Olbermann video. Raw Story has the text of the press release that Olbermann read on the air.

U.S. News reported in December, 2005, that the U.S. engaged in physical monitoring of mosques and homes without warrants. [Via Think Progress.]

In search of a terrorist nuclear bomb, the federal government since 9/11 has run a far-reaching, top secret program to monitor radiation levels at over a hundred Muslim sites in the Washington, D.C., area, including mosques, homes, businesses, and warehouses, plus similar sites in at least five other cities, U.S. News has learned. In numerous cases, the monitoring required investigators to go on to the property under surveillance, although no search warrants or court orders were ever obtained, according to those with knowledge of the program.

....The nuclear surveillance program began in early 2002 and has been run by the FBI and the Department of Energy's Nuclear Emergency Support Team (NEST). Two individuals, who declined to be named because the program is highly classified, spoke to U.S. News because of their concerns about the legality of the program. At its peak, they say, the effort involved three vehicles in Washington, D.C., monitoring 120 sites per day, nearly all of them Muslim targets drawn up by the FBI. For some ten months, officials conducted daily monitoring, and they have resumed daily checks during periods of high threat. The program has also operated in at least five other cities when threat levels there have risen: Chicago, Detroit, Las Vegas, New York, and Seattle.

...In Washington, the sites monitored have included prominent mosques and office buildings in suburban Maryland and Virginia. One source close to the program said that participants "were tasked on a daily and nightly basis," and that FBI and Energy Department officials held regular meetings to update the monitoring list. "The targets were almost all U.S. citizens," says the source. "A lot of us thought it was questionable, but people who complained nearly lost their jobs. We were told it was perfectly legal."

The Washington Post reported on December 26, 2005:

Yoo wrote a memo that said the White House was not bound by a federal law prohibiting warrantless eavesdropping on communications that originated or ended in the United States. When news of the program broke, members of both parties called for hearings.

Yoo wrote this September 25, 2001 memo. While most of the memo is devoted to the President's power to engage in war in response to a terrorist attack, it has been used to justify the warrantless eavesdroppring program. He argued:

[Congress could not] "place any limits on the president's determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response. These decisions, under our Constitution, are for the president alone to make."

My favorite Yoo quote:

In a debate last year, the official who wrote that document, John Yoo, now a law professor at Berkeley, was asked if a president could lawfully threaten to crush the testicles of an uncooperative prisoner's child.

"I think it depends on why the president thinks he needs to do that," Yoo said.

As an aside, if we're talking about physical searches, the FISA statute on physical searches for intelligence purposes is 50 USC Sec. 1822. It authorizes warrantless searches for up to a year....but here's the catch: There must be "no substantial likelihood that the physical search will involve the premises, information, material, or property of a United States person."

As for a warrant not being needed, I don't see the difference from a fourth amendment perspective between monitoring radiation at private homes and monitoring a home's heat level by thermal imagers to see if a pot grow is underway. The Supreme Court invalidated the latter in Kyllo v. United States.

Where, as here, the Government uses a device that is not in general public use, to explore details of a private home that would previously have been unknowable without physical intrusion, the surveillance is a Fourth Amendment "search," and is presumptively unreasonable without a warrant.

Update: Reddhedd at Firedoglake weighs in.

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  • Display: Sort:
    Re: Report: Warrantless Searches Advocated After (none / 0) (#1)
    by Talkleft Visitor on Sat Mar 18, 2006 at 06:50:49 AM EST
    Why am I shocked? Why am I surprised? Didn't this alien outfit tear up our Constitution years ago? What makes me irate is this: Bush keeps saying he took an oath to "protect the American people." Gee whiz and gosh, all this time I thought his oath was to uphold the Constitution. Silly me.

    Re: Report: Warrantless Searches Advocated After (none / 0) (#2)
    by Edger on Sat Mar 18, 2006 at 07:00:01 AM EST
    I guess there is now no need for warrants or FOIA requests in future investigations of this terrorist cell that has taken over the WH. All we need, according to Yoo's logic and bush's example, is to raise the money for a good strong pair of jackboots for Fitzgerald to use to kick the door down whenever he needs PDB's, classified info, or wiretap records.

    Re: Report: Warrantless Searches Advocated After (none / 0) (#3)
    by roy on Sat Mar 18, 2006 at 07:39:53 AM EST
    re: radiation monitoring and warrants, this might fall under the dog sniff exception to the Fourth Amendment. Link goes to an Orin Kerr writeup. This layman's attempt at understanding: When a dog sniffs you for drugs, it's not a "search" because he's only supposed to alert if he detects something which you have to right to possess. Nothing is revealed about you otherwise. Radiation monitoring seems to work similarly. Nothing is revealed about the subject of the monitoring unless he has radioative materials, to which he has no right.

    Re: Report: Warrantless Searches Advocated After (none / 0) (#4)
    by Talkleft Visitor on Sat Mar 18, 2006 at 07:48:17 AM EST
    An Englishman's home is his castle, and even the King's majesty . . . Oh, what a silly, archaic idea!

    Re: Report: Warrantless Searches Advocated After (none / 0) (#5)
    by Talkleft Visitor on Sat Mar 18, 2006 at 08:08:07 AM EST
    re: radiation monitoring and warrants, this might fall under the dog sniff exception to the Fourth Amendment. In numerous cases, the monitoring required investigators to go on to the property under surveillance, although no search warrants or court orders were ever obtained If they didnt go on property perhaps the sniffing exception might hold water. Mayby thats why they felt the need to add the sneak and peak into the patriot act

    Re: Report: Warrantless Searches Advocated After (none / 0) (#7)
    by Talkleft Visitor on Sat Mar 18, 2006 at 08:27:51 AM EST
    You sure thats a census? There was a republican survey out that sounds alot like that

    Re: Report: Warrantless Searches Advocated After (none / 0) (#6)
    by Talkleft Visitor on Sat Mar 18, 2006 at 08:45:37 AM EST
    Re: Report: Warrantless Searches Advocated After (none / 0) (#8)
    by wg on Sat Mar 18, 2006 at 11:45:18 AM EST
    Time to repost the video of a "presumed government" agent rummaging through my place caught accidentally on tape by me some time ago. The original site were I posted it went under. Will announce when available.

    Re: Report: Warrantless Searches Advocated After (none / 0) (#9)
    by wg on Sat Mar 18, 2006 at 12:14:45 PM EST
    (hopefully helpful) primer on SNEAK & PEEK searches To execute a S&PS government agents watch your place and break in when they are sure you aren't there. They usually leave no trace but not always. When the goal is to intimidate, as it often is, they will leave their marks (clocks blinking, phones reset from tone to pulse, etc). S&PS are used to check for criminal activity (drug/bomb making for example), to see what books/videos you collect, to copy your hard drive (treasure trove for security types usually) and your medical and financial documents, to collect DNA samples, to plant additional surveillance equipment (camera, microphones, other detectors), and quite often simply to intimidate (we are watching you!). FBI has a large number of people trained in this. Little is known about DoD or DHS capabilities, the suspicion is that they are not insignificant. It is unlikely that other security outfits (intelligence/investigatory/security components that almost every government agency has - DOE, IRS, State, etc) have trained personnel to execute them. Rogue cops on both state and local levels have been know to do them too but this is usually done via proxies. The extent to which proxies (criminal element, willing citizens, retired police/agents/guards/military) are used by federal agencies is not known.

    Re: Report: Warrantless Searches Advocated After (none / 0) (#10)
    by wg on Sat Mar 18, 2006 at 12:17:29 PM EST
    Sneak & peek searches were formally legalized for the first time in the Foreign Intelligence Surveillance Act (FISA) when it was amended during Clinton administration. Under FISA they are supposed to be used only in espionage/terror/sabotage cases. Since then the Patriot Act made them legal in normal law enforcement activities. Everything and everyone qualifies now. Before that they were used relatively rarely. It took a "pro-active" cop or FBI field office and a judge willing to look the other way to pull that off. Of course top level black bag jobs were always there regardless of any legal restrictions. ...

    Re: Report: Warrantless Searches Advocated After (none / 0) (#11)
    by wg on Sat Mar 18, 2006 at 12:39:51 PM EST
    There is no legal recourse in S&P searches. In fact by definition they are ordered secretly, executed secretly and in most cases kept secret forever. If the search was done legally under FISA order, you will never know. (one case when DoJ admitted publicly to conducting a FISA authorized S&PS was that of Brandon Mayfield in Oregon). How often government does them is not known, despite clear statutory requirement they never release the relevant statistic. They release combined (i.e. surveillance and physical searches) numbers only. The "Patriot" Act authorized S&P searches are far less common, primarily because the law presumes the victim will be notified sooner or later. Originally judge decided (ex parte of course) whether to notify you or not, the recent amendments made it mandatory in 30 days although some loopholes still exists. If you are a victim of an unauthorised operation by an enterprising cop or FBI field office or DoD or DHS you will of course never know. ---- The sense of legal impotence made possible by the present legal regime is quite useful to the government because it facilities greatly various neutralizing, preempting or psychological operations of theirs. --- (sorry TL for this being that long, feel free to cut)

    Re: Report: Warrantless Searches Advocated After (none / 0) (#12)
    by wg on Sat Mar 18, 2006 at 08:17:07 PM EST
    facilitates of course. need to invest in grammar checker one day.

    bush has about 30,000 old nuclear bombs is anyone check his home out? after all bin laden was on the bush pay-roll.

    to goodasgold, perjury you say? how could the government place a perjury charge? on some poor person or the 20 million homeless or the 3 million inside the political prison system? the fact is the rats will use the census as a political tool and what a tool that will be, if you know what i mean?

    Re: Report: Warrantless Searches Advocated After (none / 0) (#15)
    by wg on Sun Mar 19, 2006 at 11:32:01 PM EST
    Link to the "sneak & peek" primer posted above. --- Glad to see Freddy again and in such top form for change.