FBI Lied To Support Need For PATRIOT Act Expansion

I Don't Believe in Imaginary Property writes "It probably won't surprise you, but in 2005, the FBI manufactured evidence to get the power to issue National Security Letters under the PATRIOT Act. Unlike normal subpoenas, NSLs do not require probable cause and you're never allowed to talk about having received one, leading to a lack of accountability that caused them to be widely abused. The EFF has discovered via FOIA requests that an FBI field agent was forced by superiors to return papers he got via a lawful subpoena, then demand them again via an NSL (which was rejected for being unlawful at the time), and re-file the original subpoena to get them back. This delay in a supposedly critical anti-terror investigation then became a talking point used by FBI Director Robert Mueller when the FBI wanted to justify their need for the power to issue National Security Letters."

Comments

NSLs

[ta bu shi da yu]

National Security Letters are awful because they are so secretive, and the fact that they don't need probable cause makes them constitutionally suspect.

Re:Blogtastic.

[zz5555]

You could have gone to eff.org and found the source on the front page, if you weren't too lazy to care about the United States. (Apologies if you aren't American.) But because you are so lazy, here's a link (hopefully, this works): http://www.eff.org/deeplinks/2008/04/eff-issues-report-abuse-national-security-letter

Re:Perfect example

[mlush]

I recently heard that in England, the new powers given to the police (including local ones) by their anti-terrorism laws were mostly used for cases of minor frauds (meaning they could indefinitely detain people who, when presented to a judge, would only risk a fine). That and checking your in the right school catchment area

Re:A real danger

[jmpeax]

I'm English. I live in the UK.

The situation in Europe is but a few steps behind that in the US.

Further references: here, here and here.

Bush's "Shock Doctrine" Case in Point

[Doc Ruby]

With this NSL stunt, we see the entire Bush/Cheney Doctrine at its most blatant. The Doctrine is exploit any crisis first to expand Executive power far past Constitutional limits, without any accountability, then attend the crisis only so much as necessary to preserve those powers, then abuse them elsewhere without restraint. It's "Shock and Awe" for every occasion, especially domestically. Shocking and awful, though we're pretty numb to it by now, as the details finally start to leak out after years of digging by unsung heroes like the people at EFF.

You can look at any crisis, unexpected or manufactured, through the long 7 1/4 years of Bush/Cheney's presidency, and see that Doctrine hard at work (the only hard work done by the regime).

Or you can read Naomi Klein's book _The Shock Doctrine_ for the (literally) gory details.

Subpoenas Don't Require Probable Cause

[sophiaknows]

One basic error made in the summary and repeated by a number of posters is the the government does *not* need 'probable cause' to obtain evidence under a subpoena.

A subpoena is not a warrant, and demanding production of evidence is not a 'search' or 'seizure'

That happens when the feds show up at your house and turn over all of the furniture looking for evidence.

Basically, all they need to show for a subpoena is that the information or evidence sought is relevant to ongoing investigation

The practical difference between a NSL and a traditional subpoena is that the NSL can be issued by the FBI without requiring judicial review. Further, an NSL includes a built-in gag order while the judge would again have to rule on the appropriateness of sealing order and gagging the recipient.

Not correct

[hey!]

No search or seizure is reasonable unless determined by a court to derive from probable cause for the search or seizure.

That's not true at all. If the police are engaging in hot pursuit, they don't have to wait for a warrant to follow you (or anybody else) onto your property.

The health inspector or fire marshal doesn't need a warrant to inspect private property for code violations.

If there is active combat, say in a civil war, the army can enter your house without permission for combat purposes, either to seek combatants or to use it as a vantage point. This is one reason why Americans ought to be very concerned about blurring the definition of "combat" and "combatant".

The Fourth Amendment says that searches need only be "reasonable". It's presumptively unreasonable to search or seize in circumstances where a warrant is customarily required. However, if you can show that under the circumstances delaying to seek a warrant would be unreasonable, you don't need one, although you have to prove this, and may face challenges to evidence you introduce into criminal trials.

The flip side is that having a warrant issued on probable cause makes a search presumptively reasonable, but there are exceptions. If the warrant is not sufficiently narrowly tailored to the evidence supporting probable cause, or you exceed its specific limitations, then your search or seizure is unreasonable, warrant notwithstanding.

So, the Fourth Amendment is both stronger and weaker than people think it is. It is certainly not reasonable to play linguistic games to make a search appear "reasonable". Calling a person a "combatant" isn't enough to convert an unconstitutional search into a constitutional one, because it is the substance of the circumstances that matter. If you're shooting at people out of your window, it is the necessity of protecting people that makes entering your home, searching it, and detaining you reasonable, not the label the police apply to you.

Re:A real danger

[Chatterton]

Recycling of an old post:

'I've Got Nothing to Hide' and Other Misunderstandings of Privacy

Abstract:
In this short essay, written for a symposium in the San Diego Law Review, Professor Daniel Solove examines the nothing to hide argument. When asked about government surveillance and data mining, many people respond by declaring: I've got nothing to hide. According to the nothing to hide argument, there is no threat to privacy unless the government uncovers unlawful activity, in which case a person has no legitimate justification to claim that it remain private. The nothing to hide argument and its variants are quite prevalent, and thus are worth addressing. In this essay, Solove critiques the nothing to hide argument and exposes its faulty underpinnings.

I've Got Nothing to Hide