John Yoo's Legal Rationale: Warrantless Surveillance Is Basically A DUI Checkpoint, But For Terrorism

from the drunk-texting,-dialing,-emailing,-internet-browsing... dept

Mike Masnick took a very in-depth look at the recently declassified legal rationale for warrantless surveillance, authored by torture aficionado John Yoo back in 2002. The long and the short of the letter is this: executive power trumps everything, even the Constitution. The letter was "given" to the FISA court, much in the way an expensive and fragile item is "given" to a toddler. FISC Judge Kollar-Kotelly was allowed to look at it, but not keep a copy or take notes.

One of the more darkly entertaining aspects of the letter is Yoo's "kitchen sink" approach to justifying the warrantless searches and seizures. USA Today's Brad Heath pointed out the long list of rough comparisons Yoo included in the letter, claiming that warrantless domestic surveillance was roughly comparable to searching high school kids' lockers for drugs… among other things.

Here's the list:
A variety of government searches, therefore, have met the Fourth Amendment requirement of reasonableness without obtaining a judicial warrant. The Supreme Court, for example, has upheld warrantless searches that involved the drug testing of high school athletes, id, certain searches of automobiles, Pennsylvania v. Labron, 518 US. 938 (1996) (per curiam), drunk driver checkpoints, Michigan v. Dept of State Police v. Sitz, 496 U.S. 444 (1990), drug testing of railroad personnel, Skinner v. Railway Labor Executives Ass'n 489 US. 602 (1989), drug testing of federal customs officers, Treasury Employees v. Von Raab, 489 US. 656 (1989), administrative inspection of closely regulated businesses, New York v. Burger, 482 US. 69] (1987), temporary baggage seizures, United States v. Place, 462 U.S. 696 (1933), detention to prevent flight and to protect law enforcement officers, Michigan v. Summers, 452 U.S. 692 (1931), checkpoints to search for illegal aliens, United States v. Martinez-Fuerte, 423 US. 543 (1976), and temporary stops and limited searches for weapons, Terry v. Ohio, 392 US. 1 ([96 8). The Court has cautioned, however, that a random search program cannot be designed to promote a general interest in crime control. See Indianapolis v. Edmond, 531 U.S. 3 2, 41 (2000); Delaware v. Prouse, 440 US. 648, 659 n.13 (I979).
According to the government, warrantless surveillance is a Terry stop… or a drug test performed on railroad workers… or a demand for records from a pawn shop.

Yoo expands on this rationale later in the letter, stating that warrantless electronic surveillance is really nothing more than a DUI checkpoint, but for terrorism.

If privacy interests are viewed as intruded upon only by [redacted ] is likely that Fourth Amendment interests would not outweigh the compelling governmental interest present here, In the context of roadblocks to stop drunken drivers, another area of "special needs" under the Fourth Amendment, the Court has permitted warrantless searches. See Michigan Dep't of State Police v. Sitz,, 496 US. 444 (1990). There, the Court found that a roadblock constituted a "reasonable" search due to the magnitude of the drunken driver problem and the deaths it causes -- in fact, the court compared the death toll from drunk drivers to the casualties on a battlefield. Id. at 451. It found that this interest outweighed the intrusion into privacy at a checkpoint stop, which it characterized as "brief" in terms of duration and intensity. Similarly, [redacted] than in the case of a roadblock, where a [redacted] law enforcement officer stops each driver to examine whether they are inebriated. It seems that if the Supreme Court were willing to uphold drunk driver checkpoints, it would be equally or even more willing to allow [redacted].
It's a disingenuous argument that equates surveillance of millions with a low-impact checkpoint in which dozens of drivers are given a cursory look-over by law enforcement to determine whether or not they've been drinking.

But he is right about one thing: courts have been willing to cut the government more Constitutional slack when the subject matter is the War on Terror. This legal rationale was issued shortly after the 9/11 attacks when government and court sentiments would be almost exclusively receptive to Yoo's arguments. But the searches Yoo authorized are far more general than the particularized nature of the searches he cites. In each case, there's a specific group targeted. The NSA's programs aren't nearly as focused. Communications and metadata are gathered by the millions -- both a seizure and a search -- before being refined to focus on suspected terrorists.

The surveillance Yoo argued for treats all communications originating or terminating in a foreign country as "suspicious" and subject to warrantless searches. To use his analogies, this is like claiming every locker not in a private residence should be subject to warrantless searches because contraband is sometimes stored in them. Or that every business that sells or purchases anything from overseas vendors should be subjected to the same scrutiny as pawn shops and motels simply because most terrorist attacks originate outside of US borders.


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  • identicon
    Anonymous Coward, 4 Mar 2016 @ 2:19pm

    Part of the legal rationale for DUI checkpoints is implied consent. What constitutes implied consent to warrantless surveillance? Having a pulse?

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 5 Mar 2016 @ 1:24am

      Re:

      No, that's "probable cause".

      reply to this | link to this | view in chronology ]

    • icon
      Bergman (profile), 5 Mar 2016 @ 1:59am

      Re:

      More to the point, wiretapping is illegal without a warrant under both federal and state law. If an act of eavesdropping does not require a warrant, then it cannot be wiretapping and therefore cannot be illegal.

      If it's not illegal than anyone could do it to anyone. Their neighbor, the NSA, or even the President of the United States. If the only exemption built into a law that seemingly forbids something absolutely requires a warrant, then by claiming they don't need a warrant, the government is legalizing that act.

      reply to this | link to this | view in chronology ]

  • identicon
    Mark Wing, 4 Mar 2016 @ 2:29pm

    Why is there a DUI checkpoint inside my living room?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonmylous, 4 Mar 2016 @ 2:31pm

    DUI stops? Really?

    A DUI checkpoint is typically:

    At a single intersection or offramp near an area where drinking actually happens.
    Only stops drivers on that specific road.
    Only checks for DUI offenders and scoops up other things along the way, but the justification is to stop drunk drivers otherwise normal police rules apply such as probable cause, plain view search doctrine, etc.

    What a DUI checkpoint is explicitly not:

    A stop on every single road in America.
    Stopping every driver on every road.
    Assuming guilt immediately and rooting through the car with dogs, people and tech devices before sending it through an x-ray machine and only once absolutely nothing has come up is the driver allowed to continue on their way... to the next checkpoint.

    That's the difference in what the NSA and the Alphabet Gang wants, and what the courts have actually allowed. They are so radically different in execution there is no comparison and either they are trolling the courts or seriously believe this and need to be fired and replaced.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 4 Mar 2016 @ 3:33pm

      Re: DUI stops? Really?

      The DUI stops are unconstitutional too, being searches with no warrant and no probable cause. But this is what happens when you start making exceptions to constitutional rights. You think you can do it just for drunk drivers, and then suddenly all your mail is being read by the NSA.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 4 Mar 2016 @ 7:06pm

        Re: Re: DUI stops? Really?

        But this is what happens when you start making exceptions to constitutional rights. You think you can do it just for drunk drivers, and then suddenly all your mail is being read by the NSA.

        This is the slippery slope apologists try to mock and pretend doesn't exist.

        Like the devil's best trick is convincing people he doesn't exist.

        reply to this | link to this | view in chronology ]

      • icon
        John Fenderson (profile), 5 Mar 2016 @ 5:56am

        Re: Re: DUI stops? Really?

        A million times this. DIU checkpoints are already an unconstitutional menace. Now that we an see they're also the camel's nose, can we get rid of them?

        reply to this | link to this | view in chronology ]

  • icon
    beltorak (profile), 4 Mar 2016 @ 2:44pm

    You know what, he's got a point. Think about that next time the words "slippery slope fallacy" spring to mind when you see an argument about government overreach. Slippery slope? Yeah. Fallacy? Not when the government greases the skids and hops behind the wheel....

    /color-me-cynical

    reply to this | link to this | view in chronology ]

  • icon
    Groaker (profile), 4 Mar 2016 @ 2:56pm

    Yoo has been working too hard. He needs several years off in a North Korean prison.

    reply to this | link to this | view in chronology ]

  • icon
    Nick (profile), 4 Mar 2016 @ 3:18pm

    How about we give up civil liberties and freedoms in direct ratio to how many people die or are injured from having that freedom? Since drunk drivers cause a lot of fatalities, it's ok to occasionally check drivers near/leaving bars to see if they are breaking that specific law.

    Since you are more likely to be eaten by a shark than die from a terrorist, it is NOT ok to secretly and without any restriction check on any and ALL communications by people on your own whim.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 4 Mar 2016 @ 3:31pm

    So, everyone in the chain of command thought this was a good idea. We really are doomed aren't we.

    reply to this | link to this | view in chronology ]

  • icon
    DB (profile), 4 Mar 2016 @ 3:39pm

    Doesn't this just freshly bring DUI checkpoints into question?

    I've frequently been stopped at such checkpoints. Far more than most people. I worked long hours and lived in a town with lots of night spots. I had plenty of time to think about the situation while waiting my turn to be subjected to a warrant-less search. I concluded that it was effectively making second-class citizens of people that didn't follow the norms of society.

    If you work a 9-to-5 job and go to bed at 10pm, you'll never encounter one of these checkpoints. You won't find them set up in a school zone at 4pm, outside of happy hour at 6pm, or after a Saturday softball game. You can drive around half drunk, with expired registration, no insurance, cracked windshield, and brake lights out and never be pulled over.

    But if you don't conform to norms, any of these lapses will get you a ticket, and perhaps even an extra $1K in costs when your car is towed.

    On a related note, in some places it is claimed that you voluntarily submit to the search. You supposedly have the right to turn around and avoid the search at the checkpoint. When checkpoints were set up just past my turn, it was almost certain that I would have a police car follow me. They often followed long enough for me to park, but sometimes pulled me over before then.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 4 Mar 2016 @ 7:00pm

      Re:

      very interesting insight, db, thank you...

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 4 Mar 2016 @ 7:11pm

      Re:

      Some places in Texas you are not allowed the choice of turning around nor denying them the right to take a blood sample. They have a judge on hand to issue an order to do so with or without your co-operation.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Anonymous Coward, 4 Mar 2016 @ 4:12pm

    Incredulous

    Despite his other accomplishments, because of his irrational writing with regard to abusing the constitution and ideals enumerated in the Bill of Rights and Declaration of Independence, I am having a hard time associating the word rational with John Yoo and am absolutely shocked that he is still employed by UC Berkeley.

    reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 5 Mar 2016 @ 5:29am

      Re: Incredulous

      I am having a hard time associating the word rational with John Yoo and am absolutely shocked that he is still employed by UC Berkeley.

      It's a public service. Rather than have students unsure about the quality of teaching they are likely to get until it's too late, they hire Yoo so that anyone knows instantly that the campus has absolutely no standards, and know to go elsewhere for their schooling. If a school is willing to emply a torture apologist after all then just think about what the other staff is likely to be like.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 4 Mar 2016 @ 7:07pm

    The Court has cautioned, however, that a random search program cannot be designed to promote a general interest in crime control.


    Which sounds to me like it makes the searches of cell phones in transit to their calling destination as illegal from Stingrays because it is indeed general and not specifically targeted such as a pin register on a landline would be.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 5 Mar 2016 @ 1:24am

    Soon to be a dictatorship coming to a country near you

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 6 Mar 2016 @ 2:29pm

    Word puzzle

    "where a [redacted] law enforcement officer stops each driver to examine whether they are inebriated"

    corrupt?
    deranged?
    sexually aroused?

    reply to this | link to this | view in chronology ]

  • identicon
    YooHoo, 7 Mar 2016 @ 10:17am

    If there was a hell, John Yoo would deserve to be driven in an infinite loop of DUI checkpoints while being waterboarded.

    reply to this | link to this | view in chronology ]

  • identicon
    JB Smith, 14 Mar 2016 @ 10:26am

    Surveillance

    The American Reinvestment and Recovery Act and the brain initiative are the worst scams ever perpetrated on the American people. Former U. S. Surgeon General Regina Benjamin Warns: Biochips Hazardous to Your Health: Warning, biochips may cause behavioral changes and high suicide rates. State Attorney Generals are to revoke the licenses of doctors and dentists that implant chips in patients. Chip used illegally for GPS, tracking, organized crime, communication and torture. Virginia state police have been implanting citizens without their knowledge and consent for years and they are dying! Check out William and Mary’s site to see the torture enabled by the biochip and the Active Denial System. See Terrorism and Mental Health by Amin Gadit or A Note on Uberveillance by MG & Katina Michael or Safeguards in a World of Ambient Intelligence by Springer or Mind Control, Microchip Implants and Cybernetics. Check out the audio spotlight by Holosonics. The truth is the biochip works like a sim card. It received pulsed modulated laser beams and millimeter wave which it converts into electromagnetic waves that your brain interprets into digital images and sound. It then takes what your brain sees and hears and converts electromagnetic waves into digital and acoustic waves that a computer translates into audio and video. In other words, it allows law enforcement to see what you see, hear what you hear and communicate directly with your brain.

    “Former Defense Advanced Research Projects Agency (DARPA) director and now Google Executive, Regina E. Dugan, has unveiled a super small, ingestible microchip that we can all be expected to swallow by 2017. “A means of authentication,” she calls it, also called an electronic tattoo, which takes NSA spying to whole new levels. She talks of the ‘mechanical mismatch problem between machines and humans,’ and specifically targets 10 – 20 year olds in her rant about the wonderful qualities of this new technology that can stretch in the human body and still be functional. Hailed as a ‘critical shift for research and medicine,’ these biochips would not only allow full access to insurance companies and government agencies to our pharmaceutical med-taking compliancy (or lack thereof), but also a host of other aspects of our lives which are truly none of their business, and certainly an extension of the removal of our freedoms and rights.” Google News

    The ARRA authorizes payments to the states in an effort to encourage Medicaid Providers to adopt and use “certified EHR technology” aka biochips. ARRA will match Medicaid $5 for every $1 a state provides. Hospitals are paid $2 million to create “crisis stabilization wards” (Gitmo’s) where state police torture people – even unto death. They stopped my heart 90 times in 6 hours. Virginia Beach EMT’s were called to the scene. Mary E. Schloendorff, v. The Society of New York Hospital 105 N. E. 92, 93 (N. Y. 1914) Justice Cardozo states, “every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient’s consent, commits an assault, for which he is liable in damages. (Pratt v Davis, 224 Ill. 300; Mohr v Williams, 95 Minn. 261.) This case precedent requires police to falsely arrest you or kidnap you and call you a mental health patient in order to force the implant on you. You can also be forced to have a biochip if you have an infectious disease – like Eboli or Aids.

    Coalition of Justice vs the City of Hampton, VA settled a case out of court for $500,000 and removal of the biochip. Torture is punishable by $1,000 per day up to $2 million; Medical battery is worth $2.05 million. They told my family it was the brain initiative. I checked with the oversight board, and it is not! Mark Warner told me it was research with the Active Denial System by the College of William and Mary, the USAF, and state and local law enforcement. It is called IBEX and it is excruciating. I have had 3 surgeries at the site of the implant and need another. It causes cancer! I've been tortured for 8 years by Virginia law enforcement. Thousands of innocent Virginians are being tortured and murdered by criminal cops. Please help us get the word out to end these heinous atrocities. The pain is 24/7. The VA DCJS sent me a letter stating cops can get keys to anyone's home and steal anything they please. The governor knows and takes his cut. Senator Kaine said the FBI is not involved so he can't help. Check out Virginia's Casual Disregard for the Constitution at forbes dot com. Check out Richard Cain's case. They are torturing infants and children. The active denial system comes in rifle form and can murder without leaving a mark. I have had two heart attacks and am blessed to be alive. We need to make the nation aware to stop these thugs. Please help us.

    reply to this | link to this | view in chronology ]


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