Pick Wayne's Brain

June 14, 2011

The FBI Forgets the Fourth

Filed under: Commentary — Tags: , , — Wayne A. Schneider @ 6:12 AM

I seriously have to wonder just what it means to some people to “support and defend the Constitution of the United States.” The FBI has decided to update its operations manual, which they like to call the Domestic Investigations and Operations Guide, (last updated under the previous Attorney General, Michael Mukasey), and for being such good guardians of the Constitution, they decided to let themselves have more power to abuse and ignore it.

According to the New York Times, the FBI will be allowing its agents “more leeway to search databases, go through household trash or use surveillance teams to scrutinize the lives of people who have attracted their attention.”

The F.B.I. recently briefed several privacy advocates about the coming changes. Among them, Michael German, a former F.B.I. agent who is now a lawyer for the American Civil Liberties Union, argued that it was unwise to further ease restrictions on agents’ power to use potentially intrusive techniques, especially if they lacked a firm reason to suspect someone of wrongdoing.

“Claiming additional authorities to investigate people only further raises the potential for abuse,” Mr. German said, pointing to complaints about the bureau’s surveillance of domestic political advocacy groups and mosques and to an inspector general’s findings in 2007 that the F.B.I. had frequently misused “national security letters,” which allow agents to obtain information like phone records without a court order.

The FBI General Counsel, Valerie E. Caproni, said that steps were taken to fix the problem with National Security Letters and that the problem would not recur. But unless their fix involved eliminating their use altogether, I do not see how they would be constitutional under the Fourth Amendment. The proposed changes may seem minor but they are insidious.

Some of the most notable changes apply to the lowest category of investigations, called an “assessment.” The category, created in December 2008, allows agents to look into people and organizations “proactively” and without firm evidence for suspecting criminal or terrorist activity.

Under current rules, agents must open such an inquiry before they can search for information about a person in a commercial or law enforcement database. Under the new rules, agents will be allowed to search such databases without making a record about their decision.

Mr. German said the change would make it harder to detect and deter inappropriate use of databases for personal purposes. But Ms. Caproni said it was too cumbersome to require agents to open formal inquiries before running quick checks. She also said agents could not put information uncovered from such searches into F.B.I. files unless they later opened an assessment.

In other words, they don’t want to get a warrant to search your company’s databases because it would take too long. But if they found something they could use, they could open the assessment later and then use it. I always thought that was something they liked to call “fruit of a poisoned tree.” Information illegally obtained cannot be the basis for obtaining more information legally. (I invite any lawyers out there to correct me where I am wrong. I’m a grown boy, I can take it.)

The new rules will also relax a restriction on administering lie-detector tests and searching people’s trash. Under current rules, agents cannot use such techniques until they open a “preliminary investigation,” which — unlike an assessment — requires a factual basis for suspecting someone of wrongdoing. But soon agents will be allowed to use those techniques for one kind of assessment, too: when they are evaluating a target as a potential informant.

Agents have asked for that power in part because they want the ability to use information found in a subject’s trash to put pressure on that person to assist the government in the investigation of others. But Ms. Caproni said information gathered that way could also be useful for other reasons, like determining whether the subject might pose a threat to agents.

Again, they want to conduct warrant-less searches in the interests of time and then claim that what they found was legal afterwards. The United States Constitution requires that all persons working for the government take an oath to support and defend it. That includes the Fourth Amendment which reads:

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.

I truly do not understand how what the FBI is prepared to allow themselves to do does not violate that Amendment. Do you?

(Cross-posted at TheZoo)

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