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.

Filed Under: dui checkpoint, fisa, john yoo, mass surveillance, nsa, warrantless surveillance, wiretapping

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  1. 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.

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