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
    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.

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