March 31, 2005
(Updated) AP Issues Correction On Brandon Mayfield Story
Now Says PATRIOT Act Was Not Used
Note: This post has been updated. Any and all updates appear at the end of the original post.
We find this particular correction very peculiar, and will continue to do so until and unless the AP bothers to also report why they reported the story they way they did originally.
Nonetheless, the current development in the recent news regarding Brandon Mayfield is that the Associated Press released a correction to their earlier story which reported that the U.S. Department of Justice had admitted to using the USA PATRIOT Act against Mayfield.
According to the correction, "the Justice Department said the search of Mayfield's home was conducted under a provision in the 1995 Intelligence Authorization Act, which amended the 1978 Foreign Intelligence Surveillance Act."
We're going to keep an eye out to see why the AP originally reported otherwise. In the meantime, perhaps Mayfield's attorneys simply need to publicly publish the letter in question for all to see for themselves.
The open question seems to be: Does this mean secret "sneak and peek" searches against American citizens existed prior to passage of the USA PATRIOT Act?
Update
Something appears to be quite strange with all of this, at least judging by a statement by Senator Larry Craig in April of 2004.
In the case of sneak-and-peek warrants, before the PATRIOT Act , there was no statutory authority for delayed notice warrants for physical evidence, although covert searches of oral and wire communications for intelligence purposes were allowed. The Supreme Court never ruled on the constitutionality of sneak-and-peek warrants for physical evidence, and the Federal circuit courts were divided on the issue.
What's odd, you'll notice is that the Ap in their correction says the Feds cite an Intelligence Authorization Act from 1995 as the authority under which they conducted the "sneak and peek" against Mayfield, whereas Senator Craig's statement indicates there was no statutory authority for "sneak and peek" prior to the USA PATRIOT Act.
Continuing to dig. More later.
Comments (11)
wg on 31 Mar 2005
actually the second sentence tells you everything, sneak-and-peak searches were not that unheard of pre 9/11, the law was unclear, subject to interpretation, that is subject to usual vagaries of the legal system. As a consequence court opinions were all over the map.
For the semi-official FBI line on S&P searches pre 9/11 see http://www.fbi.gov/publications/leb/1997/feb975.htm. Basically they say if you find a right judge you can get away with anything, but they warn some judges are bitches and will require prompt notification of the target.
I've seen FBI files from that period that contained some mysterious "search-slips" the nature of which was never communicated to the target (see example here). They either found judges that conveniently forgot to demand notification (easy), or they simply didn't bother to ask for a warrant. My gut level feeling is that the vast majority were in the latter category -- you can sneak-and-peak as much as you want if you don't intend to use it in actual prosecution, who will know?.
Post "Patriot Act" these things are now explicitly allowed, and as I said before, the law is silent on the meaning of "delayed notification". Their hasty retreat from claiming Mayfield's S&P searches were Patriot Act authorized comes likely from their desire to block that question from being adjudicated in courts (Mayfield could do it). Pre 9/11 sloppy reality is actually far more convenient for the FBI.
Post 9/11 legal environment is also different in that pro-active, target neutralizing law enforcement practices are highly encouraged (Ashcroft, Mueller) with legal niceties followed only when not interfering with primary mission. That's what get you your brownie points these days. That's what got Mayfield. Another version of "Extremism in defence of liberty is no vice" if you wish.
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Alan Graf seem to have some interest in this area but I'm unsure how much real experience he actually has here.
William on 31 Mar 2005
Hmmm... glad you and WG are on top of things. My recollection, perhaps incorrect, is that organized crime (especially in regards to drug running) investigations already allowed sneak and peek. The USA PATRIOT Act simply broadened things. While the FBI could always claim an organized crime search against Mayfield, his case was sold to the public as being about terrorism, and so it's easy to understand the AP "error". I place quotation marks around the word "error" because I am not sure that the request for the warrant references the law under which the warrant may be requested.
wg on 01 Apr 2005
That's easy to tell -- FISA orders can be obtained only from FISA courts. (happily we have one of their seven judges sitting right here in Pioneer Square)
Also William, while FISA orders are often called warrants "this is misleading because it suggests that the FISA order is like an ordinary search warrant ... -- and it isn't. Under the Fourth Amendment, a search warrant must be based on probable cause to believe that a crime has been or is being committed. This is not the general rule under FISA."
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So Immergut certifies that Mayfield is a person who "knowingly engages in sabotage or international terrorism, or activities that are in preparation therefor, for or on behalf of a foreign power" which immediately makes him "agent of foreign power" and as such subject to physical surreptitious searches pursuant to FISA court orders. Easy as a pie. FISA courts never denied any request.
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Patriot Act is different, there must be a probable cause and the government must show notice could “jeopardize an investigation” or “unduly delay a trial” to authorize "sneak and peak" searches. (tough ain't it?). So she could easily get her Patriot Act warrant, FISA order simply was more appealing because under FISA they never have to tell the target, Patriot Act requires that they go to court and justify further delays in notification (no clear how often).
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If they really obtained FISA order, I don't understand why they are telling us that. Those orders are never made public, even district courts have very limited access to them.
For more on FISA see http://www.eff.org/Censorship/Terrorism_militias/fisa_faq.html
I don't pretend I'm a lawyer, this is just elementary reading of existing statues.
johnny law on 01 Apr 2005
The USA Patriot Act of 2001 Amended the Foreign Intelligence surveillance Act in several important ways. Nonetheless, the first round of Mayfield searches were conducted pursuant to the provisions of FISA (as amended by the Patriot Act), not the Patriot Act itself. It's that simple.
The Justice Department has an ongoing PR campaign to minimize the notorious image of the Patriot Act. No doubt they called the AP to point out the error.
The FISA court has 11 judges now, not 7. They meet in secret in panels of 3. Portland's Senior 9th Circuit Judge Edward Leavy is not a member of the FISA court, but a member of the Foreign Intelligence Surveillance Court of Review, which is the Court of Appeal from FISA.
For surveillance of a U.S. Person (including a citizen) a FISA application needs a probable cause determination involving a crime, as well as p.c. involving terrorism or a foreign power.
For good information on FISA, see http://www.epic.org/privacy/terrorism/fisa/default.html
Sid on 01 Apr 2005
The Patriot Act is simply a bunch of amended amendments. It's not a document or particular piece of legislation that was suddenly written up after 9/11. Amendments to FISA were waiting in the wings. Those amendments lowered the bar for granting "sneak and peek" searches to the FBI.
It's much easier for editorial boards, politicians and activists to demand "changes to the Patriot Act" than it is to demand "amendments to the amended FISA amendments." DOJ is just trying to make our rallying cry more difficult by muddying the waters with confusing technicalities that Jane Doe doesn't understand.
wg on 01 Apr 2005
disagree somewhat - when people/media talk about "sneak-and-peak" searches under the Patriot Act they talk about section 213 delayed searches (18 USC 3103a(b) ) which a) didn't exists before and b) are too far reaching to have much in common with (originally) narrowly constructed FISA search powers.
FISA continue to be used widely (1200+ cases in 2002), Patriot Act (213) has only one known case so far tbomk. The disparity is likely because FISA searches can be kept totally secret by the government.
There are major constitutional problems with both Patriot Act's Sec.213 and FISA (amendend by PA or not) searches.
a) the whole concept of surreptitious searches by government agents violates centuries long concepts of basic human rights. It can always be justified, and it was, but sending Jews to Auschwitz was also justified, to some at least.
b) 213 Patriot Act s&p searches, if kept, should have defined delayed notification limits. 90 days with a possibility of optional extension. Current open-ended provisos are totally unacceptable. Ron Wyden failed in his attempt to correct this legal monstrosity.
c) FISA remains a cold-war relict that needs to be dispensed with or seriously revised. Unfortunately as pointed out by Sid they intend to make it far more intrusive.
Jack Peek on 02 Apr 2005
Gentlemen: As I sit here this morning and read your posts, I really am trying to understand your fears of loss of freedoms.
There is more then enough history to support your "claims" of all the freedoom you could lose.
Yet, too a post...EVER, have I seen a support post, a support of the goverment post, a damning of the Muslims (local or otherwise) for not speaking out "plainly" against those who seek to kill infidels(that would be you),and me.
Did you lose something in your posts, that there are really "sleeper cells" here, that these investigations are not out to claim B!X and his blog is an agent against the USA.
When you show me some degree of honesty, that you reconize these factions are here and as some posts say over the last months arent'just GWB scareing us as RANDY "L" claims...BY GOLLY, you may have found a convert...but as RANDY WOULD CHEERFULLY SAY..until then ...YOU ALL NEED TO SHUT UP!
William on 02 Apr 2005
AP article regarding sneak & peek...
http://www.truthout.org/docs_2005/040205X.shtml
Jack, if you know that history (American history, no less) supports our claims, I am not sure why you can't understand our concerns...
As far as Muslims not speaking out, shall I begin a long list of American atrocities that I think you have failed to speak out against? Be fair. I know plenty of Muslims who have spoken out against 9/11 and just because you don't doesn't mean that Muslims somehow support 9/11. They don't have some obligation to make their protests in places that you or the mass media will see it or cover it. Besides, if I were a Muslim, I would not want to do ANYTHING to justify the government's discriminatory behavior towards Muslims--even though I WOULD want the government to fight terrorism.
As far as sleeper cells, did you forget that a government report was recently leaked which pointed out that there were zero known sleeper cells here. The government "office of damage control" suggested that this simply meant they were even deeper than we imagined and that they were definitely still there. So who I am supposed to trust? An official government document that was leaked, or a dishonorable man such as Jordan who was strongly rebuked for inappropriate conduct? Come on, Jack, again, and be fair.
And yes, you're right. Of course there are terrorists trying to kill Americans. But that really has very little to do with the JTTF and our participation since you, after being asked repeatedly, have yet to explain how it is that our participation makes us meaningfully safer. I maintain that it doesn't make us meaningfully safer. You have also agreed with us that you're not opposed to oversight. Get on the side of justice and support what Leonard and Potter are asking for. Even if you think they're doing it for political reasons, it's hard to reasonably argue that it's the wrong thing to do.
wg on 03 Apr 2005
Jack, I thought you are supposed to grace Bog's blog now. What happened?
Jack Peek on 03 Apr 2005
In Defense of the Constitution
*Sen. Richard Durbin: "[CAIR is] unusual in its extreme rhetoric and its associations with groups that are suspect"
*Sen. Charles Schumer: "we know [CAIR] has ties to terrorism"
Sept. 2003 Senate Judiciary Subcommittee on Terrorism,
Technology and Homeland Security
Eleven men, including nine U.S. citizens, were arrested last year in Virginia in what authorities called the "Virginia jihad." The men were accused in a 41-count grand jury indictment of engaging in "holy jihad" to drive India out of the disputed Kashmir territory. Six have since pleaded guilty.
The indictment said some of the men traveled to Lashkar-e-Taiba terrorist camps in Pakistan, where they were trained in the use of various weapons, including small arms, machine guns and grenade launchers. The indictment also said the trips occurred both before and after the September 11 attacks.
For example, in Steve Emerson's book "American Jihad" of 2 years ago (2002) he readily points to 21 states where such Islamist extremist and terrorist organizations have been known to exist. If commentators are not reading source material on this subject, they are doing themselves a grave disservice.
True. Christianity has spawned some terrible abuses. But on a historical scale, they tend to be self-correcting. And modern Christianity does not advocate killing those who disagree with it. And, also historically, the trend with respect to human rights and personal freedom is upward.
Radical Islam, on the other hand, and its institutional violence has been increasing over the past 20 or 30 years. And it has now reached the transnational stage.
William...this report??While law enforcement officials have spoken repeatedly about their concerns over so-called sleeper cells operating within the United States, a separate F.B.I. report first disclosed last week by ABC News indicated that evidence pointing to the existence of such cells was inconclusive.
The damn 911 ATTACK is a "classic sleeper cell" operation, so if there are NO SLEEPER cells, let's call off these security measures so we don't OFFEND anyone.
The mention of the terrorst handbook found in England...if there are no sleeper cells, then the very large document was what? A SICK JOKE?
On oversight, What have I BEEN SCREAMING about for the "criminally insane" group homes parked next to a grade school..OVERSIGHT..YEP! OVERSIGHT.
There isn't any, but my wish for it isn't political....it's for the idea to save some kid from getting KILLED.
The articule this am in the paper about "grampy" and Jordan, it's so lame..its political and it is the very large ego of the mayor, being lead by the nose by the larger ego.
When you folks face the truth of that, then we find the middle ground.
PS.
"inconclusive" If you think that word means there are no sleeper cells...none at all,God help us all!
William on 04 Apr 2005
Jack, does it at all burn you that you have a beef with Leonard and, at the same time, agree that there should be proper oversight of our officers in the JTTF?
As far as things I figure you ought to be protesting, I'm talking about things from modern history that the US government has done and is doing. Like the School of the Americas. Like selling weapons to really bad people around the world (ever see that picture of Rumsfeld and Saddam warmly greeting one another? That's right--we sent bad stuff to Saddam when we already knew he was a bad man). You get the point.
As far as sleeper cells go, you will never be able to prove they are not here because, by their nature they attempt to remain hidden. Prove a negative? No thanks? Assume a negative is proof of the opposite? No way! All you can do is show that you have no evidence or extremely limited evidence. Unlike a catastrophic hijacking like on 9/11, which we did have reason (and some evidence) to suspect.
As far as finding ONE manual in a LONDON mosque... wow. Really? ONE whole manual? Out of thousands and thousands of Mosques? That's a great reason to profile ALL Muslims EVERYWHERE!!!! THEY'RE OUT TO GET US! GET YOUR GUNS EVERYONE!!!! Again, Jack, be fair.
Still waiting for you to debate. Instead of just griping about politicians. And succumbing to fear mongering.