Category Archives: criminal justice

Bitter and Sweet II

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Another “I told you so” item —

Via Digby — Sixteen months after President Bush had nominated Claude Alexander Allen to the United States Court of Appeals for the Fourth Circuit, conservative C. Boyden Gray blasted Senate Democrats for blocking Allen’s nomination:

Given their paucity of evidence, the Left’s objection cannot really be that Allen’s record suggests he would write his own views into law. The true basis for their opposition is not that he will act to implement his own agenda, but rather — given his traditional values, belief in family, and ideals of personal conservatism — that he might not warmly and enthusiastically embrace theirs. It is their political agenda that drives their animus against not only Claude Allen’s jurisprudence, but against his person — for them there is no difference. …

… Claude Allen promises not to advance a political agenda from the federal bench he has been nominated to, but to be the type of judge who buttresses the foundation of American government — by applying the rule of law however he finds it. President Bush, and the U.S. Court of Appeals for the Fourth Circuit, could do much worse than Allen. By the grace of democratic principles overriding a minority in the Senate, let us hope they do not have to.

From today’s Washington Post, by Ernesto Londoño and Michael A. Fletcher:

Claude A. Allen, who resigned last month as President Bush’s top domestic policy adviser, was arrested this week in Montgomery County for allegedly swindling Target and Hecht’s stores out of more than $5,000 in a refund scheme, police said.

Heh. Is Claude Allen’s criminal record one with his “person,” too?

Allen’s appointment to the bench was blocked, but until a month ago he was President Bush’s top domestic policy adviser, with a salary equal to Karl Rove’s. He resigned in February to “spend more time with his family.” I hope his family visits him in the Big House.

Allen was observed shoplifting on January 2, but police were able to determine (from credit card records and surveillance tape) that he’d pulled the same scam on other occasions.

Allen would purchase an item, take it to his car, return to the store, select the same item, take it to the counter and get a refund based on the receipt for the merchandise in his car, Burnett said. “He would get the money back or the credit” on his credit cards.

This guy made $160,000 a year and shoplifted at Target. How pathetic is that?

Allen is a former deputy secretary in the Department of Health and Human Services, where he became a strong advocate for abstinence-only AIDS prevention programs. He is a self-described born-again Christian who got his start in politics working for Senator Jesse Helms of North Carolina. He later worked for the Virginia state attorney general’s office and as state health and human resources secretary. “In that job,” Londoño and Fletcher write, “once he kept Medicaid funds from an impoverished rape victim who wanted an abortion.”

Allen also ran the White House Katrina task force for a short time immediately after the storm. Josh Marshall noted it had been an “odd choice” — “he’s basically the social policy czar, big into abstinence only education, stem-cell restrictions, stuff like that.” But Allen was also the White House’s highest-ranking African American aide; maybe they thought New Orleans was mostly a “black” problem.

Next time a rightie whines about Dems obstructing President Bush’s court nominees — shove Allen in his face.

Under the Rug II

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The story thus far — in the last post, we learned that Americans opposed to legal abortion have wildly unrealistic notions about what might happen if abortions became illegal. That means it’s up to us in the reality biz to face some facts.

And one of the facts we need to face is that if abortion becomes illegal women who abort will very likely face legal prosecution for it — possibly even homicide charges — in spite of what the Fetus People claim.

Allegedly the recently passed South Dakota abortion ban provides only for the punishment of abortion providers, not the women who abort. From the law:

Section 2. That chapter 22-17 be amended by adding thereto a NEW SECTION to read as follows:

No person may knowingly administer to, prescribe for, or procure for, or sell to any pregnant woman any medicine, drug, or other substance with the specific intent of causing or abetting the termination of the life of an unborn human being. No person may knowingly use or employ any instrument or procedure upon a pregnant woman with the specific intent of causing or abetting the termination of the life of an unborn human being.

Any violation of this section is a Class 5 felony.

What if a woman uses or employs an instrument or procedure upon herself? Wouldn’t that be a violation?

In the last post I mentioned a couple of young women in Colombia who aborted by taking an ulcer medication. They were arrested after being treated in a hospital emergency room for bleeding. Under the SD statute as I read it, whoever sold them the ulcer medication was liable, but it’s not clear to me that the young women wouldn’t have been liable also, since they medicated themselves. Perhaps someone with a legal background could comment on that.

But here’s another wrinkle: In Monday’s Houston Chronicle, Lynn Paltrow and Charon Asetoyer argue that

If the unborn are legal persons, as numerous South Dakota laws assert, then a pregnant woman who has an abortion can be prosecuted as a murderer under already existing homicide laws.

In other words, just because the abortion law itself doesn’t provide a legal liability for the mother doesn’t mean she wouldn’t be liable under another statute.

Farfetched? Not at all.

Prosecutors all over the country have been experimenting with this approach for years. In South Carolina, Regina McKnight is serving a 12-year sentence for homicide by child abuse. Why? Because she suffered an unintentional stillbirth. The prosecutors said she caused the stillbirth by using cocaine, yet, they did not charge her with having an illegal abortion — a crime that in South Carolina has a three-year sentence. Rather, they charged and convicted her of homicide — a crime with a 20- year sentence. They obtained this conviction in spite of evidence that McKnight’s stillbirth was caused by an infection.

Thus far, South Carolina is the only state whose courts have upheld the legitimacy of such prosecutions. But in fact, women in states across the country, including South Dakota, have already been arrested as child abusers or murderers — without any new legislation authorizing such arrests. In Oklahoma, Teresa Hernandez is sitting in jail on first-degree murder charges for having suffered an unintentional stillbirth. In Utah, a woman was charged with murder based on the claim that she caused a stillbirth by refusing to have a C-section earlier in her pregnancy.

If women are now being arrested as murderers for having suffered unintentional stillbirths, one should assume that in South Dakota’s post-Roe world intentional abortions would be punished just as seriously.

Yesterday in Slate William Saletan pointed out that the South Dakota law goes to great length to define a fertilized ovum as an “unborn human being.” Be warned.

Nicholas Kristof’s New York Times column of April 7, 2004 (via Planned Parenthood of the Inland Northwest) provides a glimpse of abortion law enforcement in Portugal.

To understand what might happen in America if President Bush gets his way with the Supreme Court, consider recent events in Portugal.

Seven women were tried this year in the northern Portuguese fishing community of Aveiro for getting abortions. They were prosecuted — facing three-year prison sentences — along with 10 ”accomplices,” including husbands, boyfriends, parents and a taxi driver who had taken a pregnant woman to a clinic.

The police staked out gynecological clinics and investigated those who emerged looking as if they might have had abortions because they looked particularly pale, weak or upset. At the trial, the most intimate aspects of their gynecological history were revealed.

Think that can’t happen here? Remember a year ago, when the attorney general of Kansas subpoenaed abortion clinics for patients’ medical records? The Red State Chastity Police do not have much in the way of respect for privacy.

Kristof continues,

This was the second such mass abortion trial lately in Portugal. The previous one involved 42 defendants, including a girl who had been 16 at the time of the alleged abortion.

Both trials ended in acquittals, except for a nurse who was sentenced to eight and a half years in prison for performing abortions. …

… Portugal offers a couple of sobering lessons for Americans who, like Mr. Bush, aim to overturn Roe v. Wade.

The first is that abortion laws are very difficult to enforce in a world as mobile as ours. Some 20,000 Portuguese women still get abortions each year, mostly by crossing the border into Spain. In the U.S., where an overturn of Roe v. Wade would probably mean bans on abortion only in a patchwork of Bible Belt states, pregnant women would travel to places like New York, California and Illinois for their abortions.

The second is that if states did criminalize abortion, they would face a backlash as the public focus shifted from the fetus to the woman. ”The fundamentalists have lost the debate” in Portugal, said Helena Pinto, president of UMAR, a Portuguese abortion rights group. ”Now the debate has shifted to the rights of women. Do we want to live in a country where women can be in jail for abortion?”

“There’s a growing sense that while abortion may be wrong, criminalization is worse,” Kristof writes. Let’s hope we don’t have to learn that lesson the hard way.

Update: See also Dr. Atrios about an abortion ban advocate who refused to answer a simple question about punishment for the mother who aborts.

Under the Rug

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I want to elaborate on this post by Digby, which links to this video in which anti-abortion protesters are asked if women should be punished for having illegal abortions. The film reveals that most of the protesters had never even thought about it. One young woman had a hard time understanding the question; it clearly had never occurred to her that women would continue to get abortions if abortions were illegal. (Upon being pressed she allowed that maybe a few women would get abortions, but she didn’t think it would happen often.)

In many nations where abortion is illegal, women really do face penalty of law for getting abortions. In this post from December I linked to Juan Forero, “Push to Loosen Abortion Laws in Latin America ,” The New York Times, December 3, 2005:

PAMPLONA, Colombia – In this tradition-bound Roman Catholic town one day in April, two young women did what many here consider unthinkable: pregnant and scared, they took a cheap ulcer medication known to induce abortions. When the drug left them bleeding, they were treated at a local emergency room — then promptly arrested.

Like the sweetly innocent abortion protester in the first paragraph, the people of Pamplona are in denial.

Like much of Latin America, the people here in Pamplona have, until recently, talked little of the abortions that have taken place behind the town’s tranquil, buttoned-down facade. Yet, 68 students, most of them from the University of Pamplona, sought emergency treatment at the local public hospital last year after having abortions, hospital records showed.

Several students said that they had a liberal attitude toward sex. Condoms are readily available, and the so-called morning-after pill is sold over the counter in pharmacies.

Still, sex education focuses more on anatomy than behavior, and church and university officials preach abstinence. Shamed by the thought of having children without being married, many young women try to induce abortions by taking a drug called Cytotec, which is made for ulcers but also dilates the cervix.

Pharmacies in Pamplona are barred from selling the drug, but students can purchase it in cities nearby. It was Cytotec that the two young women took in April that left them bleeding and, ultimately, under arrest. But there have been others, court records showed.

Under questioning from prosecutors, all admitted their guilt and received suspended sentences.

Insisting that abortion was rare, Pamplona’s conservative leaders thought the case was over. Instead, the episode reverberated throughout Colombia and helped to galvanize a national movement to roll back laws that make abortion illegal, even to save a mother’s life.

Latin America holds some of the world’s most stringent abortion laws, yet it still has the developing world’s highest rate of abortions — a rate that is far higher even than in Western Europe, where abortion is widely and legally available.

In fact, as I pointed out yesterday, western Europe as a region has the lowest rates of abortion in the world. In western Europe the very lowest abortion rates are in The Netherlands, Belgium, the Scandanavian countries, Iceland, Germany — the crazy liberal Nordic fringe, in other words.

Yet while Latin America has a shockingly high rate of abortions, “Pamplona’s conservative leaders” think abortion is “rare.”

Forero of the New York Times continues,

Regional health officials increasingly argue that tough laws have done little to slow abortions. The rate of abortions in Latin America is 37 per 1,000 women of childbearing age, the highest outside Eastern Europe, according to United Nations figures. Four million abortions, most of them illegal, take place in Latin America annually, the United Nations reports, and up to 5,000 women are believed to die each year from complications from abortions.

The degree of denial among people opposed to legal abortions is stunning. Some of you might remember the recent Mahablog comment exchange with “Keith,” who dredged up a “scholarly work” underwritten by Americans United for Life insisting there had been fewer than 100,000 illegal abortions a year in the U.S. before Roe v. Wade.

Since we’re dealing with clandestine activity people didn’t exactly keep records; any number anyone comes up with is a guess. However, another estimate that relied in part on the number of hospital admissions for botched abortions, concluded there were 829,000 illegal or self-induced abortions in the U.S. in 1967. In 1962 alone, nearly 1,600 women were admitted to just one New York City hospital because of complications from illegal abortions. And emergency room admissions represented only a portion of the abortions being performed at the time. Thinking about this makes even the 829,000 number seem low to me.

And given the many innovations in abortion procedure since Roe, you know that if abortion became illegal in the U.S. there’d be a thriving underground abortion industry in place before you could say Mifepristone. Which I bet could be run across the border from Canada without too much trouble.

And there are coathangers in every closet.

So how will laws prohibiting abortion be enforced, exactly?

My internet access is cutting in and out this morning, so I’m going to post this while I can and will (I hope) elaborate on the punishment angle in the next post.

Hamdi Ho

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Our national debate on the President’s surveillance powers has reached an impasse. We’re at the “Am not!” “Am too!” stage, which can only be resolved through the intervention of a parent.

Our side of the argument is laid out pretty well in an editorial in today’s Washington Post.

Especially without knowing the parameters of the surveillance, we hesitate to second-guess the president’s argument that FISA’s limits are unduly constraining. The surveillance may be critical for national security, and a law written in a different technological age may well need to be refurbished. But the proper way to handle that — which the administration rejected — would have been to seek changes in the law, not to do a stealthy end run around the legislative process. In such an amorphous, long-running conflict as the war against terrorism, it’s critical to ensure that limits are in place to prevent the executive branch from overreaching.

The White House has yet to explain why, if FISA regulations were cumbersome, it did not ask Congress for changes. After 9/11 Congress was tripping all over itself to give President Bush every tool he could possibly ask for to fight terrorism. The Patriot Act did, in fact, make changes in FISA (see Title II: Enhanced Surveillance Procedures). Clearly, the White House simply didn’t bother to follow legal procedure. They didn’t think they had to.

And now that they’ve been caught, they’ve gone on the defensive to make critics out to be dupes of terrorists. Instead of discussing the real issue (why the White House bypassed constitutional procedures) they’re trying to make the issue about why the Democrats are soft on terrorism, leading to the “Am not!” “Am too!” impasse. Now we need Mom to step in to make Georgie explain his extraconstitutional shenanigans and send him to his room until he promises to stop. And no computer or video games for you tonight, young man!

Today President Bush said the Supreme Court had approved warrantless wiretapping, which might come as a surprise to the justices. He’s referring to the Hamdi v. Rumsfeld decision, decided in 2004. If you don’t want to slog through the entire decision, there’s a brief abstract here.

Yaser Hamdi, an American citizen, was arrested in the fall of 2001 in Afghanistan by U.S. military. He was declared an “enemy combatant” and transferred to a military prison. A defense attorney filed a writ of certiorari in federal district court. Perhaps a reader with a law degree can explain this, but I take it this was a petition for the court to review Hamdi’s case. Anyway, the attorney, Frank Dunham, Jr., argued that the government had violated Hamdi’s 5th Amendment right to due process “by holding him indefinitely and not giving him access to an attorney or a trial,” says the abstract. “The government countered that the Executive Branch had the right, during wartime, to declare people who fight against the United States ‘enemy combatants’ and thus restrict their access to the court system.”

So how did the case turn out? The abstract continues,

In an opinion backed by a four-justice plurality and partly joined by two additional justices, Justice Sandra Day O’Connor wrote that although Congress authorized Hamdi’s detention, Fifth Amendment due process guarantees give a citizen held in the United States as an enemy combatant the right to contest that detention before a neutral decisionmaker. The plurality rejected the government’s argument that the separation-of-powers prevents the judiciary from hearing Hamdi’s challenge.

If you’re not seeing authorization for warrantless wiretapping in there, don’t worry. You aren’t the only one. A whole lot of real smart legal scholars got together to write this in the February 9 issue of the New York Review of Books:

Finally, the DOJ’s reliance upon Hamdi v. Rumsfeld, 542 U.S. 507 (2004), to support its reading of the AUMF, see DOJ Letter at 3, is misplaced. A plurality of the Court in Hamdi held that the AUMF authorized military detention of enemy combatants captured on the battlefield abroad as a “fundamental incident of waging war.” Id. at 519. The plurality expressly limited this holding to individuals who were “part of or supporting forces hostile to the United States or coalition partners in Afghanistan and who engaged in an armed conflict against the United States there.” Id. at 516 (emphasis added). It is one thing, however, to say that foreign battlefield capture of enemy combatants is an incident of waging war that Congress intended to authorize. It is another matter entirely to treat unchecked warrantless domestic spying as included in that authorization, especially where an existing statute specifies that other laws are the “exclusive means” by which electronic surveillance may be conducted and provides that even a declaration of war authorizes such spying only for a fifteen-day emergency period.

The AUMF is an act of Congress, the Authorization for Use of Military Force (AUMF) against al-Qaeda, Pub. L. No. 107-40, 115 Stat. 224 (2001). The White House argues that Congress implicitly authorized the NSA domestic spying program by means of the AUMF. The Department of Justice argues that

The Supreme Court’s interpretation of the AUMF in Hamdi v. Rumsfeld, 542 U.S. 507 (2004), confirms that Congress in the AUMF gave its express approval to the military conflict against al Qaeda and its allies and thereby to the President’s use of all traditional and accepted incidents of force in this current military conflict—including warrantless electronic surveillance to intercept enemy communications both at home and abroad. [emphasis added]

Oh, so did Justice O’Connor write in the majority decision that the AUMF authorizes the President to engage in warrantless wiretapping? Um, well, Justice O’Connor didn’t write about wiretapping or surveillance at all in the Hamdi decision. She does address warrantless arrests of American citizens, and she took a dim view of them. But not a peep about surveillance.

To understand where the Right is seeing this authorization for warrantless wiretapping in Hamdi, I turned to Paul of PowerLine, who wrote,

Specifcally, the Court ruled that AUMF grants the president implied authority to detain U.S. citizens in the U.S. because detention to prevent a combatant from returning to the battlefield is a fundamental incident of waging war. In the same way, AUMF can be read as authorizing the president to conduct communication surveillance targeted at the enemy on the ground that it too is a fundamental incident of waging war. If so, then the intercept program does not violate FISA because that statute contains an exception for surveillance authorized by statute.

Yes, O’Connor’s decision does say that combatants can be detained: “The capture and detention of lawful combatants and the capture, detention, and trial of unlawful combatants, by ‘universal agreement and practice,’ are ‘important incident[s] of war.’ … The purpose of detention is to prevent captured individuals from returning to the field of battle and taking up arms once again. … There is no bar to this Nation’s holding one of its own citizens as an enemy combatant. … In light of these principles, it is of no moment that the AUMF does not use specific language of detention.”

My reading of O’Connor’s decision is not that the AUMF authorized detention, but that detention is indisputably something that soldiers in war can do to someone fighting them. If we extrapolate Paul of PL’s reasoning, we’d have to say that warrantless wiretapping of American citizens is indisputably something that the White House can do. That’s not workin’ for me.

And the Court ruled against the Bush Administration in the Hamdi case, remember. The Court said that the executive branch cannot arbitrarily declare that an American citizen may be stripped of his due process rights, even if that citizen is caught fighting against the U.S. in a foreign country. Justice O’Connor wrote,

Striking the proper constitutional balance here is of great importance to the Nation during this period of ongoing combat. But it is equally vital that our calculus not give short shrift to the values that this country holds dear or to the privilege that is American citizenship. It is during our most challenging and uncertain moments that our Nation’s commitment to due process is most severely tested; and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad. See Kennedy v. Mendoza-Martinez, 372 U. S. 144, 164-165 (1963) (“The imperative necessity for safeguarding these rights to procedural due process under the gravest of emergencies has existed throughout our constitutional history, for it is then, under the pressing exigencies of crisis, that there is the greatest temptation to dispense with guarantees which, it is feared, will inhibit government action”); see also United States v. Robel, 389 U. S. 258, 264 (1967) (“It would indeed be ironic if, in the name of national defense, we would sanction the subversion of one of those liberties … which makes the defense of the Nation worthwhile”). …

… We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens. [emphasis added]

This, folks, is the legal decision that Bush claims supports his warrantless wiretapping program. This, folks, is called “blowin’ smoke” where I come from. There are a great many more colorful things one might call it.

The legal eagles in the New York Review of Books say that the Hamdi decision is limited to to people engaging in armed conflict against the United States in Afghanistan. Further, Congress cannot have implied authorization of the NSA program, because “Congress has expressly and specifically addressed that precise question in FISA and limited any such warrantless surveillance to the first fifteen days of war.”

I will admit right now that I am no lawyer. Paul of PowerLine is a lawyer, or so he says. Someone on the Right might — no, will — say that he must understand this legal stuff better than I do. And maybe he does. But what he claims about Hamdi is pure fantasy. I may not be a lawyer, but I can read, and I can think. And I know bullshit when I see it.

Somewhere There’s a Hero

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Michelle Malkin gleefully notes that whoever leaked information about Bush’s illegal NSA activities likely committed a felony and is subject to prosecution.

And, as Auguste at Malkin(s)Watch notes, so was Daniel Ellsberg. The law may not care what the leaker’s motives were, but history surely will.

We are a nation of laws. But a corrupt and despotic government can always use the law to hide its illegal activities. In that case, it is an act of high patriotism to place oneself in jeopardy to expose the truth.

As Henry David Thoreau said, “Must the citizen ever for a moment, or in the least degree, resign his conscience to the legislator? Why has every man a conscience then?” Most men serve the state with their bodies, or with their heads, Thoreau continued.

Such command no more respect than men of straw or a lump of dirt. They have the same sort of worth only as horses and dogs. Yet such as these even are commonly esteemed good citizens. Others-as most legislators, politicians, lawyers, ministers, and office-holders- serve the state chiefly with their heads; and, as the rarely make any moral distinctions, they are as likely to serve the devil without intending it, as God. A very few-as heroes, patriots, martyrs, reformers in the great sense, and men-serve the state with their consciences also, and so necessarily resist it for the most part; and they are commonly treated as enemies by it.

I’m not encouraging citizens to break laws whenever they feel like it. I’m saying there are rare times in which the patriot must choose between his country and his government; between his duty as a patriot and the letter of the law. And in these cases the “perp” is not guaranteed a walk, because much evil is done by misguided individuals who believe they are right. Such people are subject to judgment by their peers.

But if our republic has any chance of remaining a nation that values liberty — instead of just paying it lip service — it will be because of courageous people who stand in the way of tyranny.

We may never know who it is, but somewhere, there’s a hero. Maybe more than one.

Probable Cause

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In the aftermath of September 11 —

Surveillance applications poured in. A flood of new FBI agents, not trained in FISA law, added another complication. It was critical that the government satisfy the FISA law’s “probable cause” requirement that the target was a foreign agent.

“You’d have an FBI agent screaming, ‘I need this warrant and I need it now,'” Lesemann recalled recently. “He’s screaming, ‘People will die unless you go to court.’ Or an agent would say, ‘This is a bad person, we need to move on this,’ and I’d say, ‘Yes, this is a bad person, but there’s no ‘foreign power’ here.'”

The snip above was taken from an article in the New Jersey Star-Ledger on August 21, “Changes in the law put spotlight on a shadowy court,” by Mary Jo Patterson. Dana Lesemann, quoted in the article, was a Department of Justice lawyer with top-secret national security clearance. She had been with the DoJ since 2000. “Her job involved collaborating with intelligence agents to prepare applications for the FISA court — and making sure the government justified the intrusive surveillance,” Patterson wrote.

This article was written before Wiretapgate became public, but it reveals that the FBI and Bush Administration were frustrated by the “foreign service” requirement. As we learned a couple of days ago, the FISA court has been challenging Bush Adinistration applications at an unprecedented rate, in spite of the fact that FISA standards were lowered by the Patriot Act. Patterson wrote,

In time, the [FISA]court came to be seen as the enforcer of “the wall,” a collection of laws and administrative policies that sought to keep national-security surveillance separate from domestic law enforcement.

FISA required that foreign-intelligence gathering be “the” purpose of any surveillance. Unlike conventional wiretaps, FISA surveillance did not require federal agents to show probable cause to believe a crime had been, or would be, committed. FISA required only that the government certify it had probable cause to believe that targets were agents of a foreign power.

The Patriot Act lowered the standard for a FISA warrant. Rather than stipulating that foreign-intelligence gathering be “the” purpose of surveillance, Section 218 of the act required that gathering such intelligence be “a significant” purpose.

Former Attorney General John Ashcroft interpreted that provision to mean law enforcement officers, not just intelligence agents, could initiate and manage FISA investigations. As a result, “the wall” virtually disappeared.

But it didn’t disappear enough to satisfy the FBI and the Bush Administration, apparently. As the opening quote indicates, many were frustrated by the “foreign intelligence” requirement.

Today Armando at Kos quotes testimony by then-Attorney General John Ashcroft to the Senate Judiciary Committee in June 2004. It’s clear the FBI was, literally, all thumbs when it came to FISA requests. Bottlenecks developed, but the bottlenecks were in the FBI, not the court. One suspects the “flood of new FBI agents, not trained in FISA law” that Patterson wrote about was a big part of that problem. And the clueless wonder, Ashcroft, was slow to fix the problem. I would think FBI Director Robert S. Mueller bears some responsibility also.

But problems between the FISA court and the FBI did not begin with the Bush Administration. During the tenure of Director Louis Freeh, for example, according to Patterson:

It was not that the court was opposed to intelligence agents’ passing information along to criminal prosecutors. It just wanted to manage and be part of the information flow.

This uneasy relationship between the FBI and the court would later be blamed for the FBI’s reluctance to work up a FISA surveillance warrant application for Zacarias Moussaoui, the so-called 20th hijacker, during the runup to 9/11.

FBI field agents arrested Moussaoui on Aug. 15, 2001, in Minnesota, where he was enrolled in a flight school. Although the agents suspected he was a terrorist, he was detained on an immigration violation.

The agents desperately wanted a FISA warrant to search his laptop. FBI headquarters, however, was not satisfied that Moussaoui was an agent of a foreign power and threw up “roadblocks,” according to a 2002 letter to FBI director Robert Mueller from Coleen Rowley, chief counsel in the FBI’s Minneapolis office.

After the attacks of Sept. 11, the government got its search warrant; Moussaoui was arrested and prosecuted. In April of this year he was convicted of participating in the 9/11 conspiracy.

Although this episode is sometimes held up by righties as an example of the “cumbersome” nature of working with the FISA court, the problem was actually within the FBI bureaucracy, not with FISA. And, as I said above, the Patriot Act made the standards for obtaining a warrant even lower. According to Patterson, in 2002 the FISA court rejected Ashcroft’s contention that Section 218 of the Patriot Act granted criminal investigators wide access to intelligence material and the authority to run FISA investigations. However,

Ashcroft appealed the decision to the Foreign Intelligence Surveillance Court of Review. This court, made up of three additional federal judges, had existed since the beginning of FISA, but had never been convened before.

In its first-ever ruling, the review court reversed the FISA court.

Ashcroft’s procedures remained in place.

Yet, in spite of this unprecedented laxity, the Bush Administration has had applications bounced, and Bush decided FISA was too much bother. Who needs oversight when you talk to God? But considering that the “foreign” part of “foreign intelligence” was a big hangup, one wonders how careful the Bushies have been to separate “foreign” from “domestic.”

Well, actually, I don’t wonder. I just don’t have proof.

That the White House uses the NSA as its own personal toy is a given — we know they used the NSA to snoop on UN delegates and Mohamed ElBaradei of the IAEA, for example. And we have learned that the NSA has been tracing large volumes of phone and Internet traffic in the United States. Do we think for a moment that the Bushies have any scruples whatsoever regarding “domestic” snooping? And for non-security-related purposes? Puh-leeze …

In other wiretap news, today we learn from Lichtblau and Risen at the New York Times that “Defense lawyers in some of the country’s biggest terrorism cases say they plan to bring legal challenges to determine whether the National Security Agency used illegal wiretaps against several dozen Muslim men tied to Al Qaeda.” We don’t know if any of them were subject to illegal wiretaps, and I suspect if they were the Bushies will find ingenious ways to stonewall investigations. For more commentary, see “Meet the Fan” by ReddHedd at firedoglake.

The “Clinton Did It” Alabi

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In this Washington Times article, Charles Hunt claims “One of the most famous examples of warrantless searches in recent years was the investigation of CIA official Aldrich H. Ames, who ultimately pleaded guilty to spying for the former Soviet Union. That case was largely built upon secret searches of Ames’ home and office in 1993, conducted without federal warrants.”

Judd at Think Progress debunks the Hunt article here, but doesn’t mention Ames specifically.

Hunt provides no documentation that the search of Ames’s office and home were without warrants. But this document from the Senate Select Committee on Intelligence begins,

On February 21, 1994, agents from the Federal Bureau of Investigation (FBI) arrested a 52-year old employee of the Central Intelligence Agency (CIA), Aldrich Hazen Ames, outside his Arlington, Virginia residence, on charges of conspiracy to commit espionage on behalf of Russia and the former Soviet Union. According to the affidavit supporting the arrest warrant, these activities had begun in April 1985, and continued to the time of the arrest. Ames’s wife, Maria del Rosario Casas Ames, was arrested inside the residence on the same charges shortly after her husband was taken into custody. …

… The Senate Select Committee on Intelligence (hereinafter “the Committee”) received its initial briefing regarding the case on the day the arrests were publicly announced. The facts contained in the affidavit supporting the arrest and search warrants were summarized by representatives of the FBI.

Later in the document we learn —

Under applicable Attorney General guidelines, this meant that the FBI was able to seek authority under pertinent laws and Justice Department guidelines to employ a full array of investigative techniques against Ames. For instance, the Foreign Intelligence Surveillance Court issued orders authorizing electronic surveillance of Ames’s office and residence.

This is a long and sometimes vague document, and maybe I missed it, but I don’t see “warrantless searches” in there anywhere. I found other documents regarding Ames linked on this Department of Justice page, but I didn’t find mention of the searches in them.

I’m not sure who initiated the story that Ames’s house and office were searched without warrants, but it may have started with Republican attorney Victoria Toensing during a call-in to CNN’s Situation Room with Wolf Blitzer. Today a number of rightie commenters and bloggers repeat this story as gospel. So far, I have seen no documentation whatsoever. Maybe there is such documentation, but so far it has remained uncited. The claim that Clinton ordered warrantless physical searches of Ames’s house and office is just repeated on rightie sites as gospel truth.

Much of today’s confusion regarding FISA during the Clinton Administration stems from the fact that FISA regulations were changed after the Ames searches and arrests —

When Gorelick testified before the House Intelligence Committee in 1994 that the president had the “inherent authority to conduct warrantless physical searches,” FISA did not apply to physical searches for foreign intelligence purposes, as Media Matters for America has noted. A year later, Congress — with Clinton’s support — amended FISA to require court orders for physical searches. The Clinton administration thereafter never argued that any “inherent authority” pre-empted the new warrant requirements for physical searches under FISA.

The Bush administration, on the other hand, has argued that it had the authority to authorize the National Security Agency (NSA) to eavesdrop on domestic communications without warrants, despite FISA’s clear restrictions on warrantless electronic eavesdropping.

Toensing’s use of the Aldrich Ames case is similarly misleading. The joint CIA/FBI investigation of Ames, a CIA analyst ultimately convicted of espionage, also took place prior to the 1995 FISA amendment requiring warrants for physical searches. Therefore, when the Clinton administration ordered investigators to go “into Aldrich Ames’s house without a warrant,” they did not — as Toensing argued — “carry out their authority” to bypass the FISA requirements, because FISA did not cover such searches.

And, the SSCI document says that electronic searches complied with FISA. The Media Matters article linked above provides other documentation of compliance with FISA.

Of the physical searches, the only ones mentioned in the SSCI document are:

On June 25, 1993, the FBI conducted a search of Ames’s office at the CIA. Approximately 144 classified documents were located in his work area, most of which did not relate to his official duties. …

Do the feds need a search warrant to search other feds? I honestly don’t know.

…On September 15,1993, a search of Ames’s trash disclosed a torn note in Ames’s handwriting which appeared to relate to a clandestine meeting planned for Bogota, Colombia on October 1, 1993. …

… On October 6, 1993, a search of Ames’s trash turned up a typewriter or printer ribbon which contained two documents which Ames appeared to have prepared in 1992. Among other things, these documents discussed CIA personnel, access to classified information, and classified operational matters.

I believe I learned from Law & Order that you don’t need a warrant to search trash if it’s out on the curb to be picked up.

On October 9, 1993, FBI agents conducted a search of Ames’s residence in Arlington. Among other things, this search yielded (1) a typewriter ribbon which contained a note Ames had written to his KGB contact regarding a meeting in Caracas, Venezuela in October 1992; (2) a computer document which identified a mailbox at 37th and R Streets in Washington, D.C. as a signal site, and (3) a series of computer documents regarding Ames’s relationship with the KGB. These computer documents included information on clandestine communications, classified CIA operations, classified CIA human assets, and information regarding the payments previously made to Ames. …

… The searches of Ames’s office and residence conducted after the arrests yielded additional evidence of his relationship with the KGB and, since 1991, with its successor intelligence service, the SVR.

It may be the October 9 search that righties are claiming was conducted without a warrant, but it’s not clear from the SSCI document that there was no warrant. The document just says the FBI “was able to seek authority under pertinent laws and Justice Department guidelines to employ a full array of investigative techniques against Ames,” whatever that means.

By October 1993 the FBI had been watching Ames for a long time, and there was copious evidence he was up to something. So, surely, the FBI could have obtained a warrant. If it didn’t — far from a verified fact, IMO — I believe that was wrong.

I have noticed that righties of late like to argue that if Bill Clinton did so-and-so, then it’s OK if Bush does it. That argument doesn’t work for me — if it’s wrong, it’s wrong, no matter who does it — but it’s wonderfully persuasive to righties. Very odd.

Also: “Where’s the Outrage?“

Not Knowing When to Quit

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This evening on MSNBC I saw the “Clinton did it too” defense of Bush’s secret wiretapping knocked down by Andrea Mitchell, believe it or not, who is guest hosting Hardball, and by Alison Stewart, who is guest hosting Countdown.

Seriously. There were actual experts who patiently explained that presidents Clinton and Carter followed FISA regulations regarding wiretapping, which is way different from what Bush is doing. And for the most part these people were allowed to speak at length without being interrupted by a rightie goon. I was astonished.

This hasn’t stopped the VRWC echo chamber from pumping out the now utterly debunked lie that President Clinton believed he had an “inherent authority” to order warrantless wiretaps of American citizens. Today’s new twist is the “Gorelick Myth,” which Judd at Think Progress takes apart here. I assume the Faux News crew and the radio righties are going along with the program, so that people getting most of their news from O’Reilly, Limbaugh, et al. will never hear the debunking. And, of course, rightie bloggers are obediently falling into line.

And according to Atrios, people watching CNN this evening didn’t hear the debunking either.

This means we’re at Stage 3 of the Daou Dynamics of a Bush Scandal, and we’re rapidly moving into Stage 4.

For the next few days the Right will work hard to continually repeat their storyline, or narrative, or excuse, or whatever you want to call it, over and over, often enough that most people will hear it and believe it to be true. The fact that it’s a flat-out lie will not, of course, discourage them.

However, for the most part, tonight two MSNBC programs got it right. Better than nothing.

And the Battle Resumed at Dawn

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Georgia10 writes at Kos that on The Today Show this morning, Attorney General Alberto “torture is what I say it is” Gonzales told Katie Couric that the president was granted the power to authorize surveillance by the authorization for war.

Reuters reports,

President George W. Bush’s decision to eavesdrop on people within the United States was backed by the U.S. Congress’ authorization of military force after the September 11, 2001, attacks, Attorney General Alberto Gonzales said on Monday.

“There were many people, many lawyers, within the administration who advised the president that he had inherent authority as commander in chief under the Constitution to engage in this kind of signals intelligence of our enemy,” Gonzales said in an interview with CNN.

“We also believe that the authorization to use force which was passed by the Congress in the days following the attacks of September 11th constituted additional authorization for the president to engage in this kind of” electronic surveillance, he said.

Georgia10 shreds this claim nicely, so I don’t have to.

See also: Scott at Lawyers, Guns and Money and Michael Bérubé.

Update: See Ezra K. at TAPPED and Atrios. Short version: What is the White House hiding?

Update update: John Aravosis speculates that the NSA was spying on journalists.

This Way to the Gulags II

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James Risen and and Eric Lichtblau report in today’s New York Times that President Bush once again violated the Bill of Rights for the sake of “security.”

Months after the Sept. 11 attacks, President Bush secretly authorized the National Security Agency to eavesdrop on Americans and others inside the United States to search for evidence of terrorist activity without the court-approved warrants ordinarily required for domestic spying, according to government officials.

Under a presidential order signed in 2002, the intelligence agency has monitored the international telephone calls and international e-mail messages of hundreds, perhaps thousands, of people inside the United States without warrants over the past three years in an effort to track possible “dirty numbers” linked to Al Qaeda, the officials said. The agency, they said, still seeks warrants to monitor entirely domestic communications.

The previously undisclosed decision to permit some eavesdropping inside the country without court approval represents a major shift in American intelligence-gathering practices, particularly for the National Security Agency, whose mission is to spy on communications abroad. As a result, some officials familiar with the continuing operation have questioned whether the surveillance has stretched, if not crossed, constitutional limits on legal searches.

Let’s see …

Amendment IV

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

So how is monitoring emails and telephone calls without a warrant not a bare-assed end run around the 4th Amendment?

The Times says “Nearly a dozen current and former officials, who were granted anonymity because of the classified nature of the program, discussed it with reporters for The New York Times because of their concerns about the operation’s legality and oversight.”

Get this:

The White House asked The New York Times not to publish this article, arguing that it could jeopardize continuing investigations and alert would-be terrorists that they might be under scrutiny. After meeting with senior administration officials to hear their concerns, the newspaper delayed publication for a year to conduct additional reporting. Some information that administration officials argued could be useful to terrorists has been omitted.

“Administration officials are confident that existing safeguards are sufficient to protect the privacy and civil liberties of Americans.” What safeguards? Oh, the same ones that prevent the feds from engaging in torture, operating “black site” prisons, and holding Jose Padilla for 3 1/2 years without bringing charges (see 6th Amendment), just because? Yeah, I’m reassured.

“The number monitored in this country may have reached into the thousands over the past three years.” And includes a lot of Bush’s political opposition, no doubt.

Several officials said the eavesdropping program had helped uncover a plot by Iyman Faris, an Ohio trucker and naturalized citizen who pleaded guilty in 2003 to supporting Al Qaeda by planning to bring down the Brooklyn Bridge with blowtorches.

That’s actually funny, if you think about it. It’s not like a crew could sneak up to the Brooklyn Bridge sometime when no one was around and start blowtorching.

What appeared to be another Qaeda plot, involving fertilizer bomb attacks on British pubs and train stations, was exposed last year in part through the program, the officials said. But they said most people targeted for N.S.A. monitoring have never been charged with a crime, including an Iranian-American doctor in the South who came under suspicion because of what one official described as dubious ties to Osama bin Laden.

Post 9/11 it can’t be all that hard to get warrants if you’ve got any probable cause against somebody. So what’s wrong with getting warrants? Somehow, we limped through all previous wars and even the Cold War without going this far.

“The eavesdropping program grew out of concerns after the Sept. 11 attacks that the nation’s intelligence agencies were not poised to deal effectively with the new threat of Al Qaeda and that they were handcuffed by legal and bureaucratic restrictions better suited to peacetime than war, according to officials.” Then streamline the bureaucracy. Don’t run the Constitution through a shredder.

At an April hearing on the Patriot Act renewal, Senator Barbara A. Mikulski, Democrat of Maryland, asked Attorney General Alberto R. Gonzales and Robert S. Mueller III, the director of the F.B.I., “Can the National Security Agency, the great electronic snooper, spy on the American people?”

“Generally,” Mr. Mueller said, “I would say generally, they are not allowed to spy or to gather information on American citizens.” President Bush did not ask Congress to include provisions for the N.S.A. domestic surveillance program as part of the Patriot Act and has not sought any other laws to authorize the operation. Bush administration lawyers argued that such new laws were unnecessary, because they believed that the Congressional resolution on the campaign against terrorism provided ample authorization, officials said.

Seeking Congressional approval was also viewed as politically risky because the proposal would be certain to face intense opposition on civil liberties grounds. The administration also feared that by publicly disclosing the existence of the operation, its usefulness in tracking terrorists would end, officials said.

The legal opinions that support the N.S.A. operation remain classified, but they appear to have followed private discussions among senior administration lawyers and other officials about the need to pursue aggressive strategies that once may have been seen as crossing a legal line, according to senior officials who participated in the discussions.

Yeah, who needs those pesky checks and balances? The executive branch needs to have unfettered power to do whatever it wants. That’s the American way.

Some officials familiar with it say they consider warrantless eavesdropping inside the United States to be unlawful and possibly unconstitutional, amounting to an improper search. One government official involved in the operation said he privately complained to a Congressional official about his doubts about the legality of the program. But nothing came of his inquiry. “People just looked the other way because they didn’t want to know what was going on,” he said.

This is the path to totalitarianism, you know.

Oliver Willis writes,

There are going to be some folks who say “no big deal”, because in their world it would be okay for the entire CIA to go inside someone’s rectum because the president waved his hands around and said “terrah”. It’s so hard to care anymore.

He’s right. I noticed a number of rightie blogs — some of the same ones who are excited about how we’re bringing “democracy” to Iraq — are busily making excuses for the Bushies. Like we’re too cool to need the Bill of Rights any more.

In the comments to this blog post, someone actually wrote — “If you aren’t doing anything illegal you should have nothing to worry about.” That’s right; the classic line uttered by toadies to totalitarianism throughout history. The lessons of history don’t apply to us, though, because we’re America.

Not any more.

See also: Monitoring books but not guns.