Does anyone remember Aldrich Ames?
Reportedly, the Clinton administration had not always been enthusiastic about expanding the court's powers.
Like its predecessors, it operated under the assumption that the executive already had inherent authority to exempt itself from Fourth Amendment constraints and could order warrantless searches to protect national security. Nonetheless, the government avoided allowing this inherent authority to be tested in the courts.
Then along came Aldrich Ames. The spy case proved a convenient vehicle on which to hitch expansion of state power. It also offered a glimpse at the state-of-the-art domestic counterintelligence techniques that might well be turned on an activist group near you. Following months of electronic and physical surveillance which included a break-in of Ames' car and searches through his office and family trash FBI agents were finally turned loose in the early morning hours of October 9, 1993. They didn't `pick' locks like in the movies; they made their own keys. Among other agents in the FBI, the consensus was unanimous: The tech agents were geniuses.
Thanks to a warrant authorized by Attorney General Janet Reno, a team of agents from the sprawling National Security Division had permission to enter the Ames home in Arlington, Va.
There was only one minor problem. The attorney general of the United States does not have the authority to order a warrantless physical search of a citizen's home, argued Professor Jonathan Turley of George Washington University National Law Center. The Aldrich Ames search in my view was obviously and egregiously unconstitutional.
Other civil liberties lawyers agree with this evaluation, and the Justice Department itself was concerned enough about the question to refer to this problem when it negotiated a deal with Ames in order to avoid trial. While Ames was sentenced to life in prison, his wife Rosario received five years. We didn't get to the point of litigation, I regret to say, said Ames' lawyer Plato Cacheris. The problem was that Ames very much wanted to see that his wife was treated a little more softly than he was being treated.
Now eager to put a stamp of judicial impartiality on the hazy executive branch doctrine of inherent authority, the Justice Department immediately got behind the bill to expand the FISA court's power. Soon after Ames pleaded guilty last year to spying,
administration officials began arguing that adherence to traditional Fourth Amendment protections for American citizens would unduly frustrate counterintelligence efforts against spies operating in the U.S.
Physical searches to gather foreign intelligence depend on secrecy, argued Deputy Attorney General Jamie Gorelick.
If the existence of these searches were known to the foreign power targets, they would alter their activities to render the information useless. Gorelick went on to explain that
A [traditional] search can only be made when there's probable cause to believe a crime is involved, whereas a national-security search can be made at a substantially earlier stage. We often don't know what we're looking for when we go in, she observed.
http://mediafilter.org/caq/Caq53.court.html
This is, by no means, an attack on Clinton...
When it comes to stuff like this, I totally agreed with it then as I do now...
