We’ve all heard, of course, about the Bush administration’s warrantless-search program that included officials tapping phones and reviewing electronic communications without warrants. Moving the ball forward in a disturbing way, U.S. News published a very important story this week about an angle to warrantless searches that we hadn’t heard before: physical searches.
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 [the searches] 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.”
The article suggests the administration hasn’t searches homes and businesses in the United States without warrants — but that Bush officials believe they could do this whenever they want.
In fact, the reasoning is exactly the same as with wiretaps, with all the same mistakes and errors of fact and judgment.
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 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.”
The Gorelick myth has been debunked repeatedly, so I won’t belabor the point here. The bottom line remains the same — for the same reason the administration can’t tap your phone without a warrant, the administration also can’t conduct physical searches without a warrant, though the Bush gang believes differently.
Reading over the U.S. News piece, officials characterized this as a theoretical debate. A Justice Department spokesman said that DoJ lawyers have told Congress that the NSA program “described by the president does not involve physical searches.” On the other hand…
At least one defense attorney representing a subject of a terrorism investigation believes he was the target of warrantless clandestine searches. On Sept. 23, 2005 — nearly three months before the Times broke the NSA story — Thomas Nelson wrote to U.S. Attorney Karin Immergut in Oregon that in the previous nine months, “I and others have seen strong indications that my office and my home have been the target of clandestine searches.” In an interview, Nelson said he believes that the searches resulted from the fact that FBI agents accidentally gave his client classified documents and were trying to retrieve them. Nelson’s client is Soliman al-Buthe, codirector of a now defunct charity named al-Haramain, who was indicted in 2004 for illegally taking charitable donations out of the country. The feds also froze the charity’s assets, alleging ties to Osama bin Laden. The documents that were given to him, Nelson says, may prove that al-Buthe was the target of the NSA surveillance program.
The searches, if they occurred, were anything but deft. Late at night on two occasions, Nelson’s colleague Jonathan Norling noticed a heavyset, middle-aged, non-Hispanic white man claiming to be a member of an otherwise all-Hispanic cleaning crew, wearing an apron and a badge and toting a vacuum. But, says Norling, “it was clear the vacuum was not moving.” Three months later, the same man, waving a brillo pad, spent some time trying to open Nelson’s locked office door, Norling says. Nelson’s wife and son, meanwhile, repeatedly called their home security company asking why their alarm system seemed to keep malfunctioning. The company could find no fault with the system.
Let’s say it’s “unclear” whether the Bush gang has engaged in these warrantless searches or not. But let’s also take a moment to consider the big picture here. As far as the Bush administration is concerned, it has the legal power and authority to listen to Americans’ phone calls, read Americans’ emails, and enter Americans’ homes — all without a warrant, all without judicial oversight, and all without congressional approval.
It’s a truly breathtaking position for which there is no defense.