US News & World Report: "The Letter of the Law"

The Letter of the Law

The White House says spying on terror suspects without court approval is ok. What about physical searches?

By Chitra Ragavan

3/27/2006

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 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." FBI spokesman John Miller said none of the FBI's senior staff are aware of any such discussions and added that the bureau has not conducted "physical searches of any location without consent or a judicial order."

In December, the New York Times disclosed the NSA's warrantless electronic surveillance program, resulting in an angry reaction from President Bush. It has not previously been disclosed, however, that administration lawyers had cited the same legal authority to justify warrantless physical searches. But in a little-noticed white paper submitted by Attorney General Alberto Gonzales to Congress on January 19 (2006) 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." The memo cites congressional testimony of Jamie Gorelick, a former deputy attorney general in the Clinton administration, in 1994 stating that the Justice Department "believes, and the case law supports, that the president has inherent authority to conduct warrantless physical searches for foreign intelligence purposes."

"Black-bag jobs." ....

Much more at the link:

http://www.usnews.com/usnews/news/articles/060327/27fbi.htm

Relevant refernces:

Letter to U.S. Attorney Karin J. Immergut (PDF):
http://www.usnews.com/usnews/news/graphics/fbi1.pdf

Response to Thomas H. Nelson (PDF):
http://www.usnews.com/usnews/news/graphics/fbi2.pdf

NSA denies Thomas H. Nelson's FOIA request (PDF):
http://www.usnews.com/usnews/news/graphics/fbi3.pdf

... (you guessed it) 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 to be used in court is a concession that it is an illegal surveillance."

Page 3:
http://www.usnews.com/usnews/news/articles/060327/27fbi_3.htm

Scooter Libby’s replacement as chief of staff to the Vice President is reportedly a man named David Addington. He was formerly Cheney’s counsel, a position he held since 2001. According to the indictment (Libby's: http://thinkprogress.org/2005/10/28/libby-indictments), it appears that Addington was involved in the leak:



http://thinkprogress.org/2005/10/28/addington-involved-in-leak-scandal

http://seattlepi.nwsource.com/national/1110AP_Sunshine_Week_Delays.html
Monday, March 13, 2006 · Last updated 3:19 p.m. PT

Agencies missing FOIA deadlines, AP finds

By MARTHA MENDOZA
AP NATIONAL WRITER

(snip)

Paul McMasters, ombudsman of the nonpartisan First Amendment Center and one of the nation's leading authorities on freedom-of-information issues, said .... "There is absolutely no incentive for federal government employees to act with any sense of urgency on FOIA requests, and there are every sort of incentive to delay and delay. Those incentives are a culture of secrecy that has always existed in government, from 40 years ago when FOIA was passed to the present time."

(snip)

But Bush's directive stopped short of modifying a 2001 policy issued by then-Attorney General John Ashcroft requiring agencies to carefully consider national security, effective law enforcement and personal privacy before releasing information. Ashcroft cited security concerns in the wake of the Sept. 11 attacks as the reason for the changes to open government laws.

"The Bush-Cheney Administration sent a powerful message government-wide with the Ashcroft FOIA policy in 2001," said Sen. Patrick Leahy, D-Vt., a leading FOIA reform advocate who has several bills pending in Congress to modify the law.

"That shifted the upper hand in FOIA requests from the public to federal agencies. The new policy says, in effect, 'When in doubt, don't disclose, and the Justice Department will support your denials in court.' It undermines FOIA's purpose, which is to facilitate the public's right to know the facts, not the government's ability to hide them," he said.

(snip)