The Rights of the People (60 page)

45.
United States v. Calandra
, 414 U.S. 338 (1974).

46.
1
Annals of Congress
, p. 439.

47.
Lynch,
In Defense of the Exclusionary Rule
, p.1.

48.
People v. Defore
, 242 N.Y. 13, 21, 150 N.E. 585, 587 (1926).

49.
Stewart, “The Road to
Mapp v. Ohio
and Beyond.” Cited in Brennan’s dissent.

50.
Treasury Employees v. Von Raab
, 489 U. S. 656 (1989).

51.
Skinner v. Railway Labor Executives’ Association
, 489 U.S. 602 (1989).

52.
O’Brien,
Constitutional Law and Politics
, Vol. 2, p. 913.

53.
The Court denied certiorari in
Willner v. Barr
, 502 U.S. 1010 (1992), in which the D.C. Circuit had allowed suspicionless testing of all public employees.

54.
Chandler v. Miller
, 520 U.S. 305 (1997). Ginsburg wrote the opinion. Rehnquist was the lone dissenter.

55.
Ferguson v. Charleston
, 532 U.S. 67 (2001). In dissent were Rehnquist, Scalia, and Thomas.

56.
Vernonia School District 47J v. Acton
, 515 U.S. 646 (1995). The vote was 6–3, with Scalia—who had dissented in the U.S. Customs case—writing for the majority, and O’Connor, Stevens, and Souter dissenting.

57.
Linda Greenhouse, “Supreme Court Seems Ready to Extend School Drug Tests,”
New York Times
, March 20, 2002.

58.
Board of Education of Independent School District No. 92 of Pottawatomie County et al. v. Earls et al.
, 536 U.S. 822 (2002). In the majority were Thomas, Breyer, Kennedy, Scalia, and Rehnquist; in the minority, Stevens, Ginsburg, Souter, and O’Connor.

59.
Tamar Lewin, “Raid at High School Leads to Racial Divide, Not Drugs,”
New York Times
, Dec. 9, 2003, p. A16.
Alexander v. Goose Creek
, consent decree, Exhibit C, cv-03845, filed March 27, 2006, found at
http://www.aclu.org/images/asset_upload_file313_24952.pdf
. “Landmark Settlement Reached in Notorious
Drug Raid Caught on Tape,” ACLU statement, July 11, 2006, at
http://www.aclu.org/drugpolicy/youth/26123prs20060711.html
.

60.
Eric Rich, “Rural Md. Drug Search Becomes a Sore Subject,”
Washington Post
, May 13, 2004, p. B1. “Students in Kent County School Drug Sweep Case Win Landmark Settlement,” ACLU statement, Aug. 6, 2007.

61.
Safford United School District v. Redding
, 08-479 (2009). Six justices—Souter, Roberts, Scalia, Kennedy, Breyer, and Alito—signed the opinion. Stevens and Ginsburg agreed that the search was unconstitutional but dissented on the grant of immunity, arguing that the rules had been clearly established in a previous decision,
New Jersey
v.
T.L.O.
, 469 U.S. 325 (1985), which said that a school search must not be “excessively intrusive in light of the age and sex of the student and the nature of the infraction.” Thomas agreed on immunity but believed there was no violation of the Fourth Amendment.

62.
Adam Liptak, “Strip-Search of Girl Tests Limit of School Policy,”
New York Times
, March 23, 2009.

63.
Samson v. California
, 547 U.S. 843 (2006). A policeman, who saw Donald Curtis Samson walking down the street, searched him and found methamphetamine inside a cigarette box. The Court found that parole was more akin to imprisonment than probation was. Previously, some suspicion had been necessary for a warrantless search of a parolee, and in dissent, Stevens, Breyer, and Souter wrote, “What the Court sanctions today is an unprecedented curtailment of liberty. Combining faulty syllogism with circular reasoning, the Court concludes that parolees have no more legitimate an expectation of privacy in their persons than do prisoners.”

64.
Rocio Sanchez v. County of San Diego
, CV 00-1467 JYM (S.D. Cal. 2007). The District Court judge had ruled in favor of the county, a Ninth Circuit panel upheld the ruling 2–1, a majority of the Ninth Circuit refused to rehear the appeal en banc (generating the dissent quoted), and the Supreme Court denied certiorari.

65.
Wyman v. James
, 400 U.S. 309 (1971).

66.
Editorial, “A Loss for Privacy Rights,”
New York Times
, Nov. 28, 2007, p. A26.

  
1.
“Judge Unseals Evidence for Lawyer Wrongly Arrested in Madrid Bombings,” AP, Sept. 21, 2004, and letter to Elden Rosenthal, Mayfield’s lawyer, from Assistant U.S. Attorney Sara Clash-Drexler, March 24, 2005, quoted by Noelle Crombie, “Mayfield Home Was Searched in Secret,”
The Oregonian
, March 30, 2005, p. D01.

  
2.
Foreign Intelligence Surveillance Act
, 50 U.S.C. Chap. 36.

  
3.
No. 103-359, 108 Stat. 3444 (Oct. 14, 1994). Previously, the attorney general could authorize such secret searches, but their fruits were susceptible to suppression if a criminal case resulted.

  
4.
Someone whose home has been searched under FISA may be notified later if prosecuted or if the attorney general finds that “there is no national security interest in continuing to maintain the secrecy of the search.” 50 U.S.C. § 1825(b). The Patriot Act also amended 18 U.S.C. § 3103(a), to give judges the
power to authorize a delay in notifying the target of any federal search warrant for a “reasonable period.”

  
5.
Richard B. Zabel and James J. Benjamin, Jr.,
In Pursuit of Justice: Prosecuting Terrorism Cases in the Federal Courts
, Human Rights First, May 2008, pp. 95–96.

  
6.
In Re: All Matters Submitted to the Foreign Intelligence Surveillance Court
, 218 F. Supp2d 611 (FISC 2002), Multiple Docket Numbers, May 17, 2002, pp. 16–17.

  
7.
FISA Amendments Act of 2008, H.R. 6304, incorporated into 50 U.S.C. § 1801. This opened the way to mass interception of huge quantities of phone calls and e-mail and other Internet traffic without specifying targets. The provision is not supposed to be used “intentionally” against anyone inside the United States or against “United States persons” abroad. A U.S. person is defined by 50 U.S.C. § 1801(i) as “a citizen of the United States, an alien lawfully admitted for permanent residence … an unincorporated association a substantial number of members of which are citizens of the United States or aliens lawfully admitted for permanent residence, or a corporation which is incorporated in the United States.” But the FISA court has no role in monitoring ongoing surveillance it approves at the outset, so there is no oversight of whether intelligence agencies stop interception if they discover that a party is a U.S. person. For further discussion, see
Chapter 6
.

  
8.
50 U.S.C. § 1805(a)(3).

  
9.
Glenn A. Fine,
A Review of the FBI’s Handling of the Brandon Mayfield Case
, Office of the Inspector General, U.S. Department of Justice, March 2006,
http://www.justice.gov/oig/
. All references in the text to the Inspector General’s report on Mayfield derive from this document.

10.
To get a FISA warrant against a “non-U.S. person”—a foreigner in the U.S. illegally or for illegitimate purposes—authorities no longer have to show probable cause of his connection with a foreign organization, but merely that he alone “engages in international terrorism or activities in preparation thereof.” This so-called “lone-wolf provision” was added to FISA, at 50 U.S.C. § 1801(b)(1)(C), by Section 6001 of the Intelligence Reform and Terrorism Prevention Act of 2004.

11.
50 U.S.C. § 1805(a)(3)(B).

12.
For a history of the “wall,” see Diane Carraway Piette and Jesselyn Radack, “Piercing the ‘Historical Mists’: The People and Events Behind the Passage of FISA and the Creation of the ‘Wall,’ ”
Stanford Law and Policy Review
, Vol. 17:2, Spring 2006. Also, see
The 9/11 Commission Report
(New York: W. W. Norton, 2004), p. 539, n. 83. The commission found no legal reason that intelligence information on the potential hijackers who had entered the United States could not have been shared with criminal agents.

13.
Michael E. Rolince, transcript, “Panel II of a Joint Hearing of the Senate and House Select Intelligence Committee,” Federal News Service, Sept. 20, 2002.

14.
The destroyer was attacked on Oct. 12, 2000, in Aden, Yemen, by a small boat laden with explosives. Seventeen crewmen were killed. The parallel investigations of Mihdhar—the criminal side for his alleged involvement and the intelligence side for his role as a suspected terrorist—never merged. The National Commission on Terrorist Attacks Upon the United States,
The 9/11 Commission Report
, pp. 266–72.

15.
James Bamford,
The Shadow Factory
(New York: Doubleday, 2008), pp. 19–20.

16.
In Re: All Matters Submitted to the Foreign Intelligence Surveillance Court
, p. 17.

17.
The 911 Commission Report
, p. 539 n.

18.
USA PATRIOT Act of 2001, Public Law 107-56, § 504, amending 50 U.S.C. § 1806(k)(2). The Foreign Intelligence Surveillance Court of Review, comprising three conservative semiretired judges who had never served on the FISA court, convened for the first time in history and heard secret oral argument from only the government side on Sept. 9, 2002. Although two amicus briefs were submitted from civil liberties groups, neither they nor anyone representing the opposing view was allowed to argue the case. The Court of Review, in an opinion riddled with factual errors that might have been caught in an adversary proceeding, upheld the removal of the wall and overturned a unanimous decision by the lower, seven-judge Foreign Intelligence Surveillance Court that had rejected the government’s proposal, post—Patriot Act, to allow criminal investigators to direct the use of FISA for prosecutorial purposes. Finding a contradiction between the FISA statute and the government’s interpretation, the lower court had sounded this warning: “Criminal prosecutors will tell the FBI when to use FISA (perhaps when they lack probable cause for a Title III electronic surveillance), what techniques to use, what information to look for, what information to keep as evidence and when use of FISA can cease because there is enough evidence to arrest and prosecute.” The peculiar nature of the proceeding was illustrated by the fact that the court heard, in secret, from only one side of the argument: the government.
In Re: All Matters Submitted to the Foreign Intelligence Surveillance Court
, pp. 23–24. The Court of Review, however, found ample support in the 1978 legislative history of FISA for the concept that “intelligence and criminal law enforcement tend to merge in this area,” as the Senate report on the law declared. Noting that practically all foreign intelligence also produces evidence of criminal conduct (except for the sheer monitoring of diplomatic communications between an embassy and its foreign ministry, for example), the Court of Review held that the Patriot Act’s amendment to FISA, “by using the word ‘significant,’ eliminated any justification for the FISA court to balance the relative weight the government places on criminal prosecution as compared to other counterintelligence responses.” The opinion stresses that FISA cannot be used in domestic criminal investigations lacking any foreign intelligence purpose whatsoever. The court concluded, “We think the procedures and government showings required under FISA, if they do not meet the minimum Fourth Amendment warrant standards, certainly come close.”
In Re: Sealed Case No. 02-001
, 310 F.3d 717 (2002), decided Nov. 18, 2002, pp. 11, 29, 48. The presiding judge of the lower court, Royce Lamberth, had this acerbic reaction in a 2007 speech: “The Court of Review, in a very curious opinion, said that every attorney general in the last twenty-five years that had interpreted FISA had interpreted it wrong, and that all seven judges on the FISA Court were wrong, and here’s the new interpretation. They’re final because they’re above me, but that doesn’t make them right.” Royce Lamberth, American Library Association, June 20, 2007, at
http://www.ala.org/ala/washoff/washevents/woannual/
annualconfwo.cfm#events
.

19.
Patriot Act, § 218, and 50 U.S.C. § 1804(a)(7)(B). In a memorandum dated March 6, 2002, Attorney General John Ashcroft interpreted this amendment to
mean that FISA could now “be used
primarily
for a law enforcement purpose, so long as a significant foreign intelligence purpose remains.”
In Re: All Matters Submitted to the Foreign Intelligence Surveillance Court
.

20.
Eric Lichtblau, “U.S. Uses Terror Law to Pursue Crimes from Drugs to Swindling,”
New York Times
, Sept. 28, 2003, p. A1.

21.
The lone dissenter was Senator Russ Feingold, Democrat of Wisconsin.

22.
ACLU, “Year-Long Extension Contains No Privacy or Civil Liberties Safeguards,” Feb. 25, 2010,
http://www.aclu.org/national-security/congress-reauthorizes-overbroad-patriot-act-provisions
.

23.
Thomas Frank,
What’s the Matter with Kansas?: How Conservatives Won the Heart of America
(New York: Metropolitan Books, 2005).

24.
Bullets are usually made from lead batteries that are melted down. Two assumptions have proven incorrect: first, that the composition of the molten lead is consistent throughout, when in fact the beginning, middle, and end of the pour can contain different mixtures of elements, and second, that each batch is unique, when in fact multiple batches can be nearly identical. The first known use of the technique came in an attempt to analyze fragments of bullets in John F. Kennedy’s assassination, but in 1964 the FBI director J. Edgar Hoover informed the Warren Commission, which was looking into the assassination, that the lab was unable to distinguish among the pieces of lead. John Solomon, “FBI Forensic Test Full of Holes,” and “A Murder Conviction Torn Apart by a Bullet,”
Washington Post
, Nov. 18 and 19, 2007, p. A1.

25.
Melendez-Diaz v. Massachusetts
, 07-591 (2009). The decision was 5–4, the opinion by Scalia.

26.
Office of the Inspector General (OIG),
The FBI Laboratory: An Investigation into Laboratory Practices and Alleged Misconduct in Explosives-Related and Other Cases
, Apr. 1997.

27.
The account of the lab’s work is drawn from the Office of the Inspector General (OIG). See Fine,
A Review of the FBI’s Handling of the Brandon Mayfield Case
.

28.
Melissa Anne Smrz et al., “Review of FBI Latent Print Unit Processes and Recommendations to Improve Practices and Quality,”
Journal of Forensic Identification
, 56 (3) 2006, p. 416.

29.
Brandon Mayfield et al. v. John Ashcroft et al.
, Complaint for Violation of Civil Rights, CV-04-1427-PA, Oct. 2004, p. 6. Details of the investigation are drawn from both the Mayfield complaint and the OIG report.

30.
Robert B. Stacey, “Report on the Erroneous Fingerprint Individualization in the Madrid Train Bombing Case,”
Forensic Science Communications
, Jan. 2005, Vol. 7, No. 1, at
http://www.fbi.gov/hq/lab/fsc/backissu/jan2005/special_report/
2005_special_report.htm
.

31.
E-mail from Angela Bell, FBI Office of Public Affairs, March 22, 2007.

32.
Sarah Kershaw et al., “Spain and U.S. at Odds on Mistaken Terror Arrest,”
New York Times
, June 3, 2004, p. A1.

33.
Mayfield complaint, p. 15.

34.
The CIA, the National Security Council, the Defense Department, the Department of Homeland Security, the Justice Department, the FBI, the Treasury Department, and the National Security Agency.

35.
“Judge Unseals Evidence for Lawyer Wrongly Arrested in Madrid Bombings,” AP, Sept. 21, 2004.

36.
“Judge Unseals Evidence” and Fine,
A Review of the FBI’s Handling of the Brandon Mayfield Case
, p. 82.

37.
Fine, quoting material witness arrest-warrant affidavit, pp. 66, 252–53.

38.
Judge Ann Aiken, opinion of Sept. 26, 2007, in
Brandon Mayfield et al. v. United States of America
, Civil No. 04-1427-AA (D. Or. 2007).

39.
Mayfield complaint, p. 12.

40.
Fine, p. 59.

41.
Mayfield complaint, p. 10.

42.
Fine, p. 56.

43.
E-mail from Beth Anne Steele of the FBI Portland office to a colleague, quoted in Eric Lichtblau,
Bush’s Law: The Remaking of American Justice
(New York: Pantheon, 2008), p. 72.

44.
Smrz et al.,
Journal of Forensic Identification
, 56(3)2006, pp. 418–33.

45.
Richard Willing, “FBI Checking Prints in Death Row Cases,”
USA Today
, Jan. 11, 2006, p. 3A. After Special Agent Ann R. Todd, assigned to speak for the lab, failed to respond to the queries, Angela D. Bell, FBI Office of Public Affairs, said, “Unfortunately, the management at the FBI has determined that we can not provide any additional comment and/or information.” E-mail, March 22, 2007.

46.
Sarah Skidmore, “Wrongly Accused Man Settles Bomb Suit,” AP, Nov. 29, 2006. The comment was so obtuse that I wondered if Jordan had been misquoted, so I called him three times and left offers with his assistant and his press officer to receive a clarification or correction, if one was warranted. They didn’t provide one and so let the statement stand.

47.
50 U.S.C. §§ 1805 (a) (5), 1824 (a) (5); H.R. Rep. No. 95-1283, Part I, 95th Congress. 2d Session (1978), at 80–81.

48.
Brandon Mayfield et al. v. United States of America
, Civil No. 04-1427-AA (D. Or., Sept. 27, 2007). The statutes amended by the Patriot Act, 50 U.S.C. §§ 1804 and 1823, were found unconstitutional by the District Court judge, before the Ninth Circuit refused to let the suit go forward.

49.
Mayfield et al. v. United States of America
, No. 07-35865 (9th Cir., 2009). Mayfield had argued that the government’s retention of private materials unconstitutionally seized under FISA constituted an ongoing injury to him, but the appeals court found that even if that were the case, a finding that the seizure violated the Fourth Amendment would not require the government to return or destroy the materials. Therefore, no redress was possible. Mayfield’s petition asking that the full membership of the appeals court rehear the case en banc was denied. The Supreme Court refused to review the decision.