Search and Seizure

  • February 8, 2013

    by Jeremy Leaming

    The Obama administration is bending very little to accommodate the mounting calls for the release of legal reasoning for targeted killings of U.S. citizens abroad. So far the president has only agreed to provide legal documents regarding the use of drones and targeted killings to a couple of congressional intelligence committees.

    But Senate Judiciary Committee leaders, Chairman Patrick Leahy (D-Vt.) and Ranking Member Chuck Grassley (R-Iowa) in a Feb. 7 letter to President Obama are calling for more information.  

    The white paper leaked earlier this week, apparently providing a summary of a document crafted by a few attorneys in the Department of Justice’s Office of Legal Counsel (OLC) advanced wobbly -- some have said shoddy -- arguments that the administration’s counterterrorism policy, especially its use of drones, does not subvert constitutional principles. The white paper, in part, concluded that the president could order a targeted killing if the suspected terrorist posed an “imminent threat to the country,” capture would prove “infeasible,’ and that the operation “would be conducted in a manner consistent with applicable law of war principles.”

    Constitutional law experts, like Georgetown’s David Cole blasted the white paper, concluding it allows for the federal government to “kill its own citizens in secret.” The drone war, he explained has significantly reduced “disincentives to killing.

    Leahy and Grassley are not terribly impressed with the white paper either, saying in their letter, that it “was not an adequate substitute for the underlying legal analysis that we believed had been prepared by the Department’s [DOJ] Office of Legal Counsel (OLC) ….”

    The senators also note that the legal arguments in the white paper centered on core constitutional concerns, such as the Fourth Amendment (bars government from “unreasonable searches and seizures” and the Fifth Amendment (the Amendment’s Due Process Clause provides or is supposed to provide for a fair hearing before government can “deprive a person of life, liberty, or property.")  The Senate Judiciary Committee also has “direct oversight jurisdiction over the Department, including OLC.”

    For a president who came to power promising a more transparent government – Obama had been a sharp critic of the prior administration’s proclivity for secrecy – it seems that the legal analysis apparently calling for an outlandish extension of executive power should be made public for all, not just a few senators.

     

  • January 7, 2013

    by E. Sebastian Arduengo

    In the fall, the House of Representatives voted to pass the FISA Amendments Act 2012 reauthorization. The bill, which renews provisions of the Foreign Intelligence Surveillance Act, allows the government to eavesdrop on Americans’ electronic communications, including phone calls and emails without having to show probable cause. Despite the fact that the bill flew in the face of Fourth Amendment protection, the bill cleared the Republican-controlled House by a large margin, passing 301-118. Members like Trey Gowdy (R- S.C.) rationalized trampling on constitutional by declaring “Intelligence is the lifeblood of our ability to defend ourselves … Are we to believe that the Fourth Amendment applies to the entire world?” For much of the last two months, the matching bill in the Senate was held by Sen. Ron Wyden (D-Ore.), who insisted that the Obama administration release information about how many Americans’ communications have been released under the law. Unfortunately, on Dec. 28, the Senate voted to pass the FISA Amendments Act 73-23, after voting down Senator Wyden’s amendment forcing disclosure.

    Senator Wyden’s amendment was of particular import because FISA Amendments Act gives the government nearly limitless spying power. For example, a request related to the “Haqqani network” allows the government to tap any communications it believes will yield information about the group that is fighting American forces in Afghanistan. The request could be based on as little as the vague belief that a phone is being used to communicate with Afghan insurgents. This casts a net so broad, that when a challenge to the FISA Amendments Act went before the Supreme Court in October, ACLU deputy director Jameel Jaffer described the law to Justice Ginsburg as "dragnet surveillance."

    Perhaps a better term would be “siphon surveillance,” as documents provided by former AT&T and NSA employees show that the NSA has created dark rooms in AT&T facilities that copy all internet traffic flowing through the facilities and transmit that information to government servers. So much information is flowing to the NSA, in fact, that they are hard at work building a $2 billion data center in the Utah desert to store it all. To put this amount of data this facility will be able to store in perspective – When it is running at full capacity, it will be able to store “about 500 quintillion (500,000,000,000,000,000,000) pages of text.” Unsurprisingly, with the data spigot on, there have been numerous documented reports of the NSA collecting purely domestic communications of ordinary Americans, and collection practices have gotten so egregious that the Foreign Intelligence Surveillance Court, which usually rubber-stamps wiretap requests from the government, ruled that the government’s actions under FISA had violated the Fourth Amendment on at least one occasion.

  • December 14, 2012

    by Joseph Jerome

    Whenever an American citizen interacts with her government, the government’s first concern is increasingly ascertaining whether that individual is a terrorist. The Wall Street Journal’s Julia Angwin reports that top intelligence and law enforcement officials met in March to establish new rules permitting the National Counterterrorism Center (NCTC) “to create a government dragnet, sweeping up millions of records about U.S. citizens -- even people suspected of no crime.”  Flight records, the names of Americans hosting foreign-exchange students, and even casino-employee lists can be stored for up to five years, analyzed for suspicious behavior, and shared with foreign governments all in the name of fighting terrorism.

    According to Angwin, the impetus of the program came in the wake of Umar Farouk Abdulmutallab’s failed Christmas Day 2009 bombing. After President Obama directed government agencies to send NCTC any and all leads on terrorist threats, the Department of Homeland Security provided NCTC with a vast database of information on the condition that any data of innocent U.S. persons be purged within 30 days. The tiny, unknown NCTC was unable to process the number of leads it received, so its solution was to seek unlimited access to any government information with no time limits imposed on the data’s analysis and study. 

    “All of this happened in secret,” the ACLU’s Chris Calabrese bemoans. “No public debate or comment and suddenly, every citizen can be put under the terrorism microscope.”

  • November 1, 2012
    Guest Post

    By Anna-Rose Mathieson, a counsel in the appellate group for O’Melveny & Myers, and a co-author of two amicus briefs for the National Association of Criminal Defense Lawyers in Bailey v. United States.


    Chunon Bailey was pulled over by the police. The officers told him to exit his car, patted him down, and confiscated his keys, wallet, and car. The officers had not seen him break any laws, and found nothing incriminating during their search. They nevertheless questioned and handcuffed Bailey, and drove him away in the back of a police car. 

    Today the Supreme Court considers whether the search and seizure of Bailey was justified based on the sole fact that Bailey had recently left an apartment that the police had a warrant to search. The genesis of this issue is a case decided thirty years ago, Michigan v. Summers, where the Court ruled that police officers executing a search warrant for contraband can detain all occupants of a dwelling while searching the premises. Bailey was no longer on the premises -- the police had watched him leave the house, then followed him for nearly a mile before detaining him -- but the court below thought the rule should be extended to those who had recently left the premises. This extension is significant because the Summers rule gives police broad powers: unlike most Fourth Amendment cases, where the police must show individualized suspicion as to the specific person searched or seized, the Summers rule affords police the power to detain anyone for the duration of the search, even if the person has no apparent connection to the alleged crime and appears totally harmless. And the police can, and often do, handcuff the occupants, even when the search goes on for hours. 

  • October 31, 2012
    Guest Post

    By Professor David D. Cole, Professor of Law, Georgetown Law


    What if the government was tapping your phone unconstitutionally and there was nothing you could do about it? You’d be living in the United States of America, at least as understood by the Justice Department. Solicitor General Donald Verrilli, Jr., argued in the Supreme Court on Monday, October 29, that, for all practical purposes, the government’s authority to intercept Americans’ international phone calls and emails could not be challenged by the very people most likely to be harmed by it – lawyers, journalists, and human rights activists who regularly engage in such international communications on the very subjects and with the very people the government is likely to be monitoring. Resolution of the case, Clapper v. Amnesty International, may determine whether the most expansive government spying program ever authorized by Congress will be subject to adversarial constitutional review. 

    The Bush administration famously argued that the president’s actions in “engaging the enemy” in the “war on terror” could not be limited by the other branches. It used that argument to justify a secret warrantless wiretapping program run by the National Security Agency that monitored United States citizens’ international communications, in contravention of a criminal statute.  Richard Nixon similarly asserted, when asked by David Frost why he thought he could authorize warrantless wiretapping during the Vietnam War, that “if the President does it, that means it’s not illegal.” To his credit, President Obama has rejected these theories of uncheckable power.  But in defending the most sweeping electronic surveillance authority Congress has ever enacted, he has sought a similar result by contending that, for all practical purposes, the surveillance cannot be challenged in court.