Via U.S. News & World Report, a disquieting (if not surprising) article regarding the depths to which the Bush Administration has sunk in its pursuit of a GOP-controlled police state:
warrantless physical searches of supposed "suspects" in the never-ending war on terror. According to the article, Attorney General Alberto Gonzalez asserted, in a white paper sent to Congress on January 19, that "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."
As Jack Balkin at his blog, Balkinization,
put it:
It's increasingly clear that we no longer have simply a good faith disagreement about the scope of Presidential power, one in which the President's lawyers somehow wind up making one implausible legal argument after another. Rather, it's a fairly deliberate strategy of concentrating power in the Executive regardless of its legality or constitutionality. In this Administration, the Bill of Rights and the rule of law are strictly optional.
One might remember that many defenders of Bush's warrantless wiretapping program, which circumvents the FISA court, have argued that the program can be justified in part by the fact that it is military in nature and the material gathered will not be used in criminal prosecutions. One of the most disturbing aspects of the U.S. News article indicates that the Administration feels no such qualms when it comes to black bag searches. According to the article, the Administration pressured the FBI to use material gained from warrantless searches in prosecutions without notifying the court of the source of the material. In short, the Administration sought to pull a fast one on federal judges, to the point that FBI Director Robert Mueller was instructed to drop prosecutions if judges pressed for the source of the information. The mastermind behind this quaint slight of hand? Dick Cheney's counsel-cum-chief of staff David Addington:
White House lawyers, in particular, Vice President Cheney's counsel David 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's General Counsel, Valerie Caproni, draws the only conclusion possible (to a rational observer): "The failure to allow it [information obtained from warrantless surveillance] to be used in court is a concession that it is an illegal surveillance."
Of course, it isn't just the Fourth Amendment that is under assault here; the Administration hasn't just targeted the purported terror suspects, but their lawyers as well, thereby threatening the Fifth and Sixth Amendments. As reported by U.S. News, defense attorney Thomas Nelson has complained to the U.S. Attorney's office that he has been the target of attempts to search his home and office. The reason? FBI agents mistakenly gave Nelson's classified documents that Nelson believes may prove his client was the subject of the NSA spying program.
So, everything comes full circle. An illegal wiretapping program is used as the jumping off point for an illegal program of black bag physical searches, which is used to suppress evidence related to the illegal wiretapping program. As Bush's police state begins to kick into high gear, Professor Balkin has it 100% correct: it is well past time to stop giving this administration the benefit of the doubt.
