4TH AMENDMENT, R.I.P.
The FBI has implemented new ground rules that fundamentally alter the way investigators handle counterterrorism cases, allowing criminal and intelligence agents to work side by side and giving both broad access to the tools of intelligence gathering for the first time in decades.
The result is that the FBI, unhindered by the restrictions of the past, will conduct many more searches and wiretaps that are subject to oversight by a secret intelligence court rather than regular criminal courts, officials said. Civil liberties groups and defense lawyers predict that more innocent people will be the targets of clandestine surveillance.
The new strategy — launched in early summer and finalized in a classified directive issued to FBI field offices in October — goes further than has been publicly discussed by FBI officials in the past and marks the final step in tearing down the legal wall that had separated criminal and intelligence investigations since the spying scandals of the 1970s, authorities said.
Senior FBI officials said the changes have already helped the bureau disrupt plans for at least four terrorist attacks overseas and uncover a terrorist sleeper cell in the United States, though they declined to provide details on those cases. The approach also has resulted in a notable surge in the number of counterterrorism investigations, a statistic that is classified but currently stands at more than 1,000 cases, officials said.
“With 9/11 as the catalyst for this, what we’ve done is fundamentally change the approach we take to every counterterrorism case,” FBI terrorism chief John S. Pistole said in an interview. “This is a sea change for the FBI.”
To civil libertarians and many defense lawyers, the changes pose a threat to the privacy and due-process rights of civilians because they essentially eliminate, rather than merely blur, the traditional boundaries separating criminal and intelligence investigations. As a result, these critics say, FBI agents and federal prosecutors will conduct many more searches and seizures in secret, as allowed under intelligence laws, rather than being constrained by the rules of traditional criminal warrants.
“By eliminating any distinction between criminal and intelligence classifications, it reduces the respect for the ordinary constitutional protections that people have,” said Joshua L. Dratel, a New York lawyer who has filed legal briefs opposing government anti-terrorism policies. “It will result in a funneling of all cases into an intelligence mode. It’s an end run around the Fourth Amendment,” which protects citizens from unreasonable searches, he said.
According the the unedited version, the 4th says:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Sadly, this rather simple declaration has more exceptions than any other of our fundamental rights, as this FindLaw “annotated” version shows. Given that fighting terrorism is almost certainly a better rationale than preventing the appearance of corruption–which justified the Court’s upholding of McCain-Feingold–this further erosion of the right against warrantless searches will almost certainly be upheld. Depending on Sandra Day O’Connor’s mood on the day it reaches the Court, of course.