Wednesday, May 31, 2006

Police State Update...

You might be remembered a couple of weeks ago I threw a shoe over HR 5020 P.C.S. Intelligence Authorization Act for Fiscal Year 2007

It contained some provisions in sections 423 and 432 that amend federal law to give the CIA and NSA unlimited plenary police power in the United States.

Well, the Senate has finally roused itself from a pork-induced stupor and floated their companion version of the bill. There is some good news and some not so good news.

The Senate did not do away with the provisions in their version. They did, however, water them down, ever so slightly. To wit, they added the following line on the end of both offending verses:
"...and such personnel may not exercise any authority for the service of civil process or for the investigation of criminal offenses."
So it appears that the language will dilute the ability of the CIA or NSA to engage in blanket law enforcement.

However, the rest of the language leaves the possibility open, especially given that Sparky Gonzalez is going to be the one creating their operating parameters through an authorization opinion. Remember, the key phrase is "while engaged in protective functions." But that phrase is completely undefined.

Here is 50 USC 403f(a)(4) as it stands now:
"Authorize personnel designated by the Director to carry firearms to the extent necessary for the performance of the Agency’s authorized functions, except that, within the United States, such authority shall be limited to the purposes of protection of classified materials and information, the training of Agency personnel and other authorized persons in the use of firearms, the protection of Agency installations and property, and the protection of current and former Agency personnel and their immediate families, defectors and their immediate families, and other persons in the United States under Agency auspices
...and this is what it is being replaced with in the section 424 of the Senate version:
"Authorize personnel engaged in the performance of protective functions authorized pursuant to subparagraph (A), when engaged in the performance of such functions, to make arrests without warrant for any offense against the United States committed in the presence of such personnel, or for any felony cognizable under the laws of the United States, if such personnel have reasonable grounds to believe that the person to be arrested has committed or is committing such felony, except that any authority pursuant to this subparagraph may be exercised only in accordance with guidelines approved by the Director and the Attorney General and such personnel may not exercise any authority for the service of civil process or for the investigation of criminal offenses
This is where it pays to know the phrase Chevron Deference from the Chevron v. NRDC case in 1984.

In short, it is the doctrine that absent clear legislative intent, or specific legislative language, federal agencies and rules promolgators are to be given deference in creating the regulations that give reality to laws passed by Congress. In other words, if Sparky says that the CIA can now set up speed traps on I-80 as part of their "protective functions" the Justice Department is to be accorded a deference in their definition of "protective functions," because Congress couldn't -- or wouldn't -- be bothered to define it.

Also, there is the problematic issue of "reasonable grounds," versus "probable cause" for the grounds for arrest for CIA and NSA officers. Black's Law Dictionary, 7th Ed. defines probable cause as:
A reasonable ground to suspect that a person has committed or is comitting a crime or that a place contains specific items connected with a crime. * Under the Fourth Amendment, probable cause -- which amounts to more than a bare suspicion, but less than evidence that would justify a conviction -- must be shown before an arrest warrant or a search warrant may be issues.
Now let's compare this to NEW JERSEY v. T. L. O., 469 U.S. 325 (1985) where the court annunciates the "reasonable grounds" standard by saying [cites omitted]:
"Ordinarily, a search - even one that may permissibly be carried out without a warrant - must be based upon "probable cause" to believe that a violation of the law has occurred... However, "probable cause" is not an irreducible requirement of a valid search. The fundamental command of the Fourth Amendment is that searches and seizures be reasonable, and although "both the concept of probable cause and the requirement of a warrant bear on the reasonableness of a search ... in certain limited circumstances neither is required." Thus, we have in a number of cases recognized the legality of searches and seizures based on suspicions that, although "reasonable," do not rise to the level of probable cause."
This creates a lower standard of evidence or care for "reasonable grounds. And remember, the sections of law we're talking about also specifically state that the officers can act without a warrant if they believe they meet this lower standard, which then takes the bar and kicks it down even lower.

I realize I have been winding on here, so let me just wrap up with this: The U.S. Senate version of FY2007 Intelligence Authorization bill sets up a nominally watered down version of the language that has us so cranked here. We'll see what comes out of conference. But remember, whatever version that gets passed, it will be up to the Attorney General of the United States, now, to use the CIA and the NSA protective services in whatever capacity he sees fit for domestic U.S. law enforcement. I have attempted to peel back the curtain a bit here and show the legal underpinnings as I understand them, and hopefully impart a sense of the danger that is embodied in this.

These two buried and fairly innocuous sections contain the seeds of a full-blown police state as repressive as anything we saw in Eastern Europe during the Cold War and completely breach the original organizational principles of the CIA and NSA, not to mention violating the classical liberal ideals that our country was founded uopn. Why, oh why, are there not more people getting seriously cranked about this?!

mojo sends

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