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From: "Jon Roland" <[EMAIL PROTECTED]>
To: <[EMAIL PROTECTED]>
Sent: Saturday, October 20, 2001 6:17 PM
Subject: Fw: ACLU letter asks Congress to nix "secret searches" from USA Act
Need everyone to send similar letters to their members of Congress.
------------------------
Date: Sat, 20 Oct 2001 14:24:10 -0400
From: Declan McCullagh
Some background on "secret search" proposals in the last Congress:
http://www.wired.com/news/business/0,1367,33779,00.html
---
http://www.aclu.org/congress/l101901a.html
The Honorable Patrick Leahy
433 Senate Russell Building
Washington, DC 20510
The Honorable Orin Hatch
104 Senate Hart Building
Washington, DC 20510
The Honorable James Sensenbrenner
2332 Rayburn House Office Building
Washington, DC 20515
The Honorable John Conyers
2426 Rayburn House Office Building
Washington, DC 20515
Re: Sneak and Peek Search Warrants on Anti-Terrorism Legislation
Dear Members of Congress:
The House and Senate anti-terrorism bills (H.R. 2975 and S. 1510)
contain a "delayed notice" provision, section 213, that would greatly
expand the government's authority to conduct covert searches. This
means that law enforcement agencies can enter a person's home or
office, search through the person's possessions, in some cases seize
physical objects or electronic information, without the person knowing
that law enforcement agents were there. This is a significant change
from the way searches have been conducted historically and will
diminish privacy protections guaranteed by the Fourth Amendment. We
believe this to be an unwise change. We are especially concerned that
this very significant change in the conduct of searches governed by
the Fourth Amendment is being considered in the context of emergency
legislation to respond to the terrorist attack, without either the
House or Senate holding hearings to thoroughly consider the
ramifications of this change. Furthermore, this provision is not
limited to crimes of terrorism, but would apply in all federal
criminal cases. Lastly, unlike other provisions of H.R. 2975 that
expand the government's power to search, this provision does not
sunset in a few years.
As a general rule, covert searches for physical evidence are illegal.
Rule 41(d) of the Federal Rules of Criminal Procedure specifically
requires that the officer conducting the search "shall leave a copy
and receipt at the place from which the property was taken." Title 18
of the United States Code only authorizes delayed notice for searches
of oral and wire communications (see 18 U.S.C. 2510 et seq.). Nothing
in the criminal code permits secret searches for physical evidence.
Furthermore, the Supreme Court has traditionally held that an officer
must knock and announce his presence before serving a search warrant,
absent exigent circumstances. See Richardson v. Wisconsin, 520 U.S.
385 (1997).
The Department of Justice claims that the provision in the
anti-terrorism legislation will codify the already existing practice
of conducting covert searches. It is true that the FBI sometimes
conducts covert searches, but that fact is disturbing given its lack
of legal authority to do so. The Department of Justice seeks this
provision precisely because FBI agents do not have the authority to do
what they are doing.
The Department of Justice is correct in stating that the Second
Circuit has upheld the constitutionality of this practice, provided
that agents did not seize any items. See U.S. v. Villegas, 899 F2d
1324 (2nd Cir. 1990). The Ninth Circuit has also permitted the use of
evidence obtained through covert searches; however, the case law is
much more convoluted. The first case it considered was United States
v. Freitas, 800 F.2d 1451 (9th Cir. 1986). In that case, the district
court found that covert search warrants were invalid under Rule 41 and
unconstitutional. However, on appeal, the Ninth Circuit held that
evidence seized pursuant to the warrant could be used under the "good
faith exception" in United States v. Leon, 468 U.S. 897 (1984).
Subsequent cases seem to have upheld the concept of covert searches,
but have usually found that the criteria necessary to support the
search were not met. See United States v. Johns, 851 F.2d 1131 (9th
Cir. 1988). Other circuits have not ruled on the constitutionality of
covert searches, nor has the Supreme Court. The most that can be said
conclusively about the case law on secret searches is that it is
limited and confused.
The essence of the Fourth Amendment is that searches be "reasonable"
and "specific." See Berger v. New York, 388 U.S. 41 (1967). Even if a
secret search warrant complies with the constitution by specifying a
particular place or items to be searched, authorizing law enforcement
to conduct covert searches increases the likelihood that the terms of
the warrant will be violated.
Failure to notify a person that their home is being searched
forecloses any opportunity to assert one's Fourth Amendment rights.
For example, without notice, a person could not point out deficiencies
in the warrant, such as that law enforcement officials are searching
the wrong home or are searching outside the scope of the warrant. Nor
can a person challenge the warrant in court. Although difficult to do,
a person can challenge a search warrant by appearing before the court
that issued it and asking for the warrant to be suppressed. It is
impossible for a person to assert his or her Fourth Amendment rights
if the person does not realize they are being violated.
We urge the conferees to omit this provision from the anti-terrorism
bills (section 213). If the government insists that it needs this
authority, it should urge Congress to hold hearings and carefully
consider this provision. Sneaking the provision on to a bill that the
Administration knows will pass is playing fast and loose with our
Constitution. We hope that you will protect it.
Sincerely,
Laura Murphy, Director
Washington National Office
American Civil Liberties Union
Jim Babke, President
American Liberty Foundation
Rob Carlson
Americans for the Preservation Of Information Security
Tom Deweese, President
American Policy Center
Grover Norquist, President
Americans for Tax Reform
Jerry Berman, Executive Director
Center for Democracy And Technology
Ken McEldowney, Executive Director
Consumer Action
Richard Rahn
Senior Fellow
Discovery Institute
David Sobel, General Counsel
Electronic Privacy Information Center
Bert Ely
Ely and Company
Paul Weyrich, President
Free Congress Foundation
Adrian Day, Editor
Global Analyst
Larry Pratt, Executive Director
Gun Owners of America
Steve Dabach, National Director
Libertarian Party
James Landrithm Jr.
Editor and Publisher
The Multiracial Activist and Abolitionist Examiner
Irwin Schwartz, President
National Association of Criminal Defense Lawyers
David Burton
Senior Fellow
Prosperity Institute
Kathryn Serkes, President
Square One Media Network
Sonia Arrison, Director
Center for Technology Studies
Pacific Research Center
Cc:
Senator Ted Kenney
Senator Russ Feingold
Representative Dennis Hastert
Representative Richard Gephardt
Representative Henry Hyde
Representative Dick Armey
Representative Bobby Scott
Representative Barney Frank
---------------End of Original Message-----------------
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