Tuesday, February 19, 2008

I agree with Andrew Napolitano

Andrew Napolitano, in a L.A. Times op/ed, says:
The 4th Amendment was written in response to the Colonial experience whereby British soldiers wrote their own search warrants, thus literally authorizing themselves to enter the private property of colonists.

The amendment has been uniformly interpreted by the courts to require a warrant by a judge; and judges can only issue search warrants after government agents, under oath, have convinced the judges that it is more likely than not that the things to be seized are evidence of crimes. This standard of proof is called probable cause of crime. It is one of only two instances in which the founders wrote a rule of criminal procedure into the Constitution itself, surely so that no Congress, president or court could tamper with it.

FISA also created the bizarre, constitutionally questionable procedure in which federal agents could appear in front of a secret court and, instead of presenting probable cause of a crime in order to obtain a search warrant, would only need to present probable cause that the target of the warrant was an agent of a foreign government. The foreign government could be friendly or it could wish us ill, but no illegal or even anti-American behavior need be shown. Subsequent amendments to this statute removed the "agency" requirement and demanded only that the target be a person physically present in the U.S. who was not born here and is not an American citizen, whether working for a foreign government or not.

The FISA statute itself significantly -- and, in my opinion, unconstitutionally -- lowered the 4th Amendment bar from probable cause of "crime"to probable cause of "status." However, in order to protect the 4th Amendment rights of the targets of spying, the statute erected a so-called wall between gathering evidence and using evidence. The government cannot constitutionally prosecute someone unless it has evidence against him that was obtained pursuant to probable cause of a crime, a standard not met by a FISA warrant.

Congress changed all that. The Patriot Act passed after 9/11 and its later version not only destroyed the wall between investigation and prosecution,they mandated that investigators who obtained evidence of criminal activity pursuant to FISA warrants share that evidence with prosecutors. They also instructed federal judges that the evidence thus shared is admissible under the Constitution against a defendant in a criminal case. Congress forgot that it cannot tell federal judges what evidence is admissible because judges, not politicians, decide what a jury hears.

Then the Bush administration and Congress went even further. The administration wanted, and Congress has begrudgingly given it, the authority to conduct electronic surveillance of foreigners and Americans without even a FISA warrant -- without any warrant whatsoever. The so-called Protect America Act of 2007, which expired at the end of last week, gave the government carte blanche to spy on foreign persons outside the U.S., even if Americans in the United States with whom they may be communicating are spied on -- illegally -- in the process. Director of National Intelligence J. Michael McConnell told the House Judiciary Committee last year that hundreds of unsuspecting Americans' conversations and e-mails are spied on annually as a consequence of the warrantless surveillance of foreigners outside the United States.
Hear, hear. Well said. I've been saying the same for years. You want to snoop, get a freakin' warrant!!! No exceptions!!!

(FWIW, I disagreed with Napolitano back in the Clinton years on the legal issues of the Elian Gonzales case)

2 Comments:

At 9:02 PM, Blogger Bart DePalma said...

Napolitano errs on several levels.

1) The 4th Amendment was meant to protect citizens, not foreign agents or enemy combatants. No one during the Revolution would have even considered going to a court to get a warrant to spy on the British.

2) The courts have long and unanimously held that the 4th Amendment does not extend to intelligence gathering against agents of any nationality working for a foreign group. Thus, the FISC issuance of warrants for this purpose is not constitutionally questionable in the least. Pointless given that the President already has this power, but not suspect.

3) The 4th Amendment does require a warrant for the purposes of gathering criminal evidence in the United States against anyone. Thus, I agree with Napolitano that the standards for issuing a FISA warrant for these purposes do not meet the standards of the 4th Amendment and are constitutionally questionable.

4) The courts have also held that criminal evidence gathered during intelligence gathering is admissible so long as the circumstances indicate that the primary government purpose was indeed to gather intelligence and not to gather criminal evidence. I believe there is some questionable language in the Patriot Act that permits criminal evidence to be admitted from warrantless surveillance of one of the purposes is intelligence gathering, even if it is not the primary purpose. However, Napolitano is wrong to imply that the 4th Amendment somehow bars all information sharing between the intelligence community and law enforcement. Rather, those restrictions were statutory and were removed at the recommendation of the 9/11 Commission.

 
At 12:17 PM, Blogger Arne Langsetmo said...

"Bart" DePalma:

You are incorrect in several key points.

1) The 4th Amendment was meant to protect citizens, not foreign agents or enemy combatants....

No. The Fourth Amendment was mean to protect the American people. You can not show a single case for the proposition that a person within the U.S. has no Fourth Amendment rights by dint of not being a citizen.

... No one during the Revolution would have even considered going to a court to get a warrant to spy on the British.

The Fourth Amendment wasn't in play during the American Revolution, you numbnutz. And if they "went to court", their choices would have been ... courts set up or authorised by the British.

2) The courts have long and unanimously held that the 4th Amendment does not extend to intelligence gathering against agents of any nationality working for a foreign group. Thus, the FISC issuance of warrants for this purpose is not constitutionally questionable in the least. Pointless given that the President already has this power, but not suspect.

Not true.

First, the Fourth Amendment applies to wiretaps (Katz v. U.S., 389 U.S. 347 (1967)).

Second, the Fourth Amendment certainly applies to cases of "wiretaps 'to gather intelligence information deemed necessary to protect the nation from attempts of domestic organizations to attack and subvert the existing structure of the Government.'" U.S. v. U.S. District Court, 407 U.S. 297 (1972). This specific case takes on your tired old trope, "Bart", about the preznit having some plenary power to "take such measures as he deems necessary to protect the Nation against actual or potential attack or other hostile acts of a foreign power, to obtain foreign intelligence information deemed essential to the security of the United States, or to protect national security information against foreign intelligence activities" (id at 302), anything said by Congress or the Fourth Amendment notwithstanding. The court in U.S. v. U.S. District Court rejected that view, at least on the specifics of that case. That supposed plenary power is a figment of your imagination.

I know you will cavil about the fact that this was a "domestic organisation", and you specified "foreign group". U.S. v. U.S. District Court declined to rule in any fashion on that: "Further, the instant case requires no judgment on the scope of the President's surveillance power with respect to the activities of foreign powers, within or without this country." (Id at 308). What it said is that there is no plenary power for wiretapping for "national security" purposes, and that such a claim could not prevail for the circumstances of the case at bar. But your 'argument', "Bart", (that the preznit has such unchecked powers) obviously finds no distinction in the text of the Constitution between "foreign powers" as the subject of the snoops, and "domestic groups". Arguing one but not the other must find authority in places other than the Constitution. Where, "Bart"?

BTW, U.S. v. U.S. District Court also shoots big holes in your distinction that wiretapping for "collecting and maintaining of intelligence with respect to subversive forces, and [] not an attempt to gather evidence for specific criminal prosecutions" makes a difference, and your claims that practicality dictates a relaxation of the warrant requirement, because only the gummint and not the judges know enough to evaluate the special circumstances, and also, the difficulties of keeping secrecy if judges are involved in the warrant process. They rejected these 'theories'. See id at 318-321.

But "Bart": You claimed "long" and "unanimous" holdings in cases supporting your claim here.

Here's the ground rules for my blog, "Bart": One can make an unsupported assertion once (just so we don't have to provide references for the obvious and/or undisputed). If one's assertion is questioned or challenged, it will be incumbent on that person to provide (full) cites, quotes (where possible), and any other evidence to support the assertion. If they do not, I reserve the right to simply delete the assertions.

So here, let's have this long and unbroken string of cases for this proposition of yours. Give the holdings of the cases, with a quote when applicable. String cites are discouraged, and you need to explain why and how the case applies to your assertion.

3) The 4th Amendment does require a warrant for the purposes of gathering criminal evidence in the United States against anyone. Thus, I agree with Napolitano that the standards for issuing a FISA warrant for these purposes do not meet the standards of the 4th Amendment and are constitutionally questionable.

OK, so how am I (or Judge Napolitano) wrong here?

4) The courts have also held that criminal evidence gathered during intelligence gathering is admissible so long as the circumstances indicate that the primary government purpose was indeed to gather intelligence and not to gather criminal evidence. I believe there is some questionable language in the Patriot Act that permits criminal evidence to be admitted from warrantless surveillance of one of the purposes is intelligence gathering, even if it is not the primary purpose. However, Napolitano is wrong to imply that the 4th Amendment somehow bars all information sharing between the intelligence community and law enforcement. Rather, those restrictions were statutory and were removed at the recommendation of the 9/11 Commission.

How can Napolitano be "wrong" if he's advancing a Fourth Amendment argument?!?!? Any changes to statutory law post-9/11 can hardly amend the Constitution.

You need quotes and cites, "Bart".

Cheers,

 

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