Archive for the ‘Fourth Amendment’ Category

Why Susan Rice’s Reported ‘Unmasking’ of Trump Officials Raises Very Serious Legal Concerns for Her – LawNewz

Watergate was just a private break-in by private actors. To preclude either Watergate or Cointelpro from ever occurring again, and in response to Justice Douglas warnings about illegal uses of electronic surveillance, Congress passed laws to conform surveillance to the twin mandates of the First and Fourth Amendment.

The means our government uses to protect the First and Fourth Amendment rights of Americans without sacrificing the countrys security needs for information gathering on foreign threats is a process known as minimization and masking. The point of the minimization and maskingprotocolsis to insure Americas eavesdropping on foreigners safeguards the constitutional rights of U.S. persons. These protocols are not merely internal rules nor discretionary guidelines; they are the necessary legislatively delegated means required to protect theprivacyrights of U.S. persons provided for by the Bill of Rights of the United States Constitution.Violating these provisions does more than violate mere regulatory restrictions; violating these provisions violates the Constitutional rights of Americans. That is why the law criminalizes such action when taken under color of law by rogue agents.

The law imposescriminalsanctions on government officials who engage in electronic surveillance under color of law except as authorized by statutes and governing regulations implementing those statutes. This same criminallawmakes a person guilty of an offense if she intentionally discloses or uses information obtained under color of law by electronic surveillance, knowing or having reason to know that the information was obtained in a manner not authorized by law. Notably, the law enforcementdefenseis limited to law enforcement or investigative officer cleared to do so by a search warrant or court order. The crime imposes a term ofimprisonmentup to sixty months in a federal prison.The point of the law criminalizing rogue agents either intercepting Americans conversations illicitly or unmasking they identities illegally is to protect against rogue government agents from abusing the most powerful surveillance means ever developed to invade the free speech, free thought, free expression and intimate privacy rights of all Americans.

According to both FBI DirectorComeyand NSA DirectorClapper, no warrant ever authorized the intercepts and electronic surveillance on a member of Trumps team. Yet, Chairman Nunesreportssuch intercepts occurred, identifying them as incidental. As law professor GlennReynoldsrecently noted, recent reports raise doubts on how incidental it was. And now,national security reporter Eli Lake ofBloombergNews reports note that former National Security Advisor SusanRice unmasked apparently some of Trump transition team members whentheir communications were caught in Americas Snowden-reported expansive surveillance web. It appears what Snowdenwarnedof how this wide net of eavesdropping would inescapably be misused by the Hoover-ites in the government may have cometrue.

The key question now is simple: what legal basis did Susan Rice have to order the unmasking of Trump team members? If the information was inadequate to justify a FISA warrant (or the Obama White House wanted to keep some members of the intelligence community out of the loop?), what permissible purpose justified the unmasking? How significant is this?

As the minimization and maskingprotocolscompel, the incidental information gathered by the NSA spying machine is legally protected from public disclosure and is to be used only for official purposes of National Security Agency/Central Security Services. All users with access must strictlyadhereto all classification and handling restrictions. Sound familiar?Who could ever imagine the Obama foreign affairs apparatusmishandlingclassified information? Who could ever imagine SusanRice, whose Secretary of State bid failed due to her Benghazi-implicated scandals, behaving badly? Who could ever imagine the Obama administration spying on Americans in dubious ways, like say, trying tosurveilthe Associated Press, spy on a Fox Newsreporter,eavesdropon his own allies, joke about drone bombing Wikileaks founderAssange, or trying to lock up morewhistleblowersthan all prior administrations combined?

Essential aspects of thoserulesrequire that intercepted communications between persons in the United States inadvertently intercepts during the collection of foreign communications will be promptly destroyed unless the Attorney General determine that the contents indicate a threat of death of serious bodily harm. As for communications that incidentally intercept an American and a foreigner, the information concerning U.S, persons must be disseminated in a manner which does notidentifythe U.S. Person. The only exceptions to this allowunmaskingwhen the communications concern varieties of probable cause of a crime, such as that the U.S. person is working as an agent of the foreign power to engage in criminal conduct, disclosing classified information without authorization, engaged in international narcotics activity, engaged in criminal activity, is the target of hostile intelligence activities of a foreign power, is terrorism connected, a threat to safety, or is an existing senior official. Of critical note, at all times theunmaskingmust made by the appropriate approval authority and must fit a need for the identity for the performance of his official duties. Note what is not present: unmasking for partisan aims, political purposes, or personal enmity. To be clear,we dont know why Susan Rice unmasked these identities, but given the political nature of this case, it is reasonable to question her motives.

Some defenders of Rice suggests she could label anything she wanted of foreign intelligence value, under the implementing regulatory protocols and thereby label it foreign intelligence information under the statute. The law is not so broad. Instead, the statute requires foreign intelligence information be necessary to the conduct of foreign affairs and to the persons position, and further employs a more limiting specific definition in the regulations in USSID for warrant-less seizures, as necessary to make it constitutional under the 4th Amendment. That definition is limited to criminal conduct type behavior, or its security equivalent. That is why the regulatory protocols give specific examples of the type of information that meet this standard of foreign intelligence value. What are those examples? Criminal-type behavior or imminent security risks. Why those restrictions? Because that makes it conform to the First and Fourth Amendment limitations on the intercept of Americans private political conversations. The examples are not prohibitive of like conduct being included, but it must belikeconduct e.g., criminal-type behavior or imminent-safety risk. Why? So it can be constitutional under the 4th Amendment, because the act of unmasking is an act of invading Americans privacy, covered by the 4th Amendment, and political speech in private is a right protected by the First Amendment. This is the biggest mistake the Obama defenders have been making, and reflects their lack of understanding of the laws Constitutional context and legislative history. Put most simply, neither the 1st Amendment nor the 4th Amendment has a talking to foreigners exception.

Hence, the reason Schiff was soshiftyon Jake Tapper on Sunday after Schiff read the unmasked intel at the invite of the White House last week. Was it because he saw unmasked identities on conversations that could not fit any of those very narrow, constricted, limited legal circumstances allowed? Susan Ricefeignedno knowledge of any incidental intercepts just a few a weeks back.Why say so if she thought it never happened and any unmasking was completely legal? (Note: A source close to Rice told CNN reporter Jim Sciutto that the idea that Ambassador Rice improperly unmasked the identities of Americans is false.)

Regardless, Susan Rice, and the Obama administration, appeared to have often skipped the Constitutional limits on their duties while in office; now might be a good time to buffup on the Fifth Amendment, and the right to counsel. Congress may be calling soon.

Robert Barnes is a California-based trial attorneywhose practice focuses on Constitutional, criminal and civil rights law. You can follow him at@Barnes_Law

This is an opinion piece. The views expressed in this article are those of just the author.

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Why Susan Rice's Reported 'Unmasking' of Trump Officials Raises Very Serious Legal Concerns for Her - LawNewz

Rep Gutierrez Tells CNN Sanctuary Cities Are Actually ‘Fourth … – PoliticusUSA

Rep. Luis Gutierrez (D-IL) told CNNs Chris Cuomo this morning that so-called Sanctuary Cities are actually Fourth Amendment Cities.

Heres how I see it yeah, they call them sanctuary cities. What I would say, Chris, is theyre Fourth Amendment cities.

Watch courtesy of CNN:

The DEA, the FBI, the ATF they get warrants right? They go and pick people up.

What [Immigration and Customs Enforcement] which is another federal law enforcement agency does is it wants to have people detained and wants the city of Chicago to go after people without any probable cause being submitted before the court and without a warrant.

If you supply a warrant to the city of Chicago, we will absolutely honor that warrant. But youve got to get a warrant.

Gutierrez is right. The Fourth Amendment says in language even a Republican should be able to understand, 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.

This is not what the Trump administration and Attorney General Jeff Sessions want to hear. Sessions actually said on Monday that the Constitution makes our nation less safe:

Such policies cannot continue. They make our nation less safe by putting dangerous criminals back on the streets.

According to Sessions, cities that stand by the United States Constitution cannot have federal money, certainly a bizarre and unreasonable stance for an administration to take, given the presidents vow to defend and support that Constitution.

Donald Trump, fourth Amendment, Fourth Amendment Cities, immigration, jeff sessions, Luis Gutierrez, sanctuary cities, Sanctuary Cities Are Fourth Amendment Cities, Trump Deportations, United States Constitution

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Rep Gutierrez Tells CNN Sanctuary Cities Are Actually 'Fourth ... - PoliticusUSA

Dem Rep Gutierrez: ‘Sanctuary Cities’ Are Actually ‘Fourth Amendment Cities’ – Breitbart News

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On Wednesdays broadcast of CNNs New Day, Representative Luis Gutierrez (D-IL) argued, they call them sanctuary cities, what I would saytheyre Fourth Amendment cities.

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Gutierrez said, Heres how I see it, they call them sanctuary cities, what I would say, Chris, theyre Fourth Amendment cities. Why do I say that? If you supply a warrant to the city of Chicago, right, we will absolutely honor that warrant. But youve got to get a warrant. So think about it a moment, the DEA, the FBI, the ATF, they get warrants, right? They go and pick people up. What ICE, which is another federal law enforcement agency, does, is it wants to have people detained, and wants the city of Chicago to go after people without any probable cause being submitted before the court, and without a warrant.

Follow IanHanchett on Twitter @IanHanchett

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Dem Rep Gutierrez: 'Sanctuary Cities' Are Actually 'Fourth Amendment Cities' - Breitbart News

Liberal Silence Tramples The Fourth Amendment – Above the Law

This week liberals have displayed their willingness to play politics with our constitutional rights. It is wrong. It is unfortunate. And most of all, it is dangerous.

Recognizing that national interest should supersede partisan interest, I have said repeatedly that the Russian hacking into the Democratic National Committee is not just an attack on Democrats, it is an attack on all Americans. I say this despite being an avowed Republican and supporter of President Donald Trump.

In the course of investigating the Russian hacking, a new, extremely troubling development has developed: duringroutine monitoring of foreign diplomats, the conversations of American citizens were transcribed and disseminated around government, in some cases for no apparent reason. These American citizens happened to be members of the incoming Trump administration and transition team.

This development should concern all Americans regardless of ideology or political party, but unfortunately the left has opted to ignore the charge and in some cases outright marginalize it.

As any 1L law student could tell you, the Fourth Amendment protects American citizens against unreasonable search and seizure. This includes our private communications.

As such, rules surrounding wiretapping are detailed, nuanced, specific, and carefully crafted to safeguard this constitutionally enshrined Fourth Amendment right. For instance, to monitor the communications of a U.S. citizen suspected of being an agent of a foreign power who is knowingly engag[ing]in clandestine intelligence activities, you must obtain a warrant from the FISA court.

If an American citizens communications are intercepted in the course of listening in on a foreign diplomat, the Director of National Intelligence has issued detailed guidance to minimize surveillance of this U.S. citizen.

Unless there is (1) evidence of a crime or (2) the communication is necessary to understand foreign intelligence, the intelligence official must minimize the acquisition and retention, and prohibit the dissemination of such information,according to 50 U.S.C. 1801. In addition to prohibiting dissemination of the U.S. citizens conversation, their names are to be kept private.

But these procedures were allegedly disregarded not once but on several occasions during the Obama administration. For example, the personal communications of Trumps former National Security Adviser, Mike Flynn, with the Russian ambassador were transcribed and disseminated around government.

Was Flynn committing a crime? Or were Flynns words pertinent to foreign intelligence? Even if the answer is yes, the egregious actions of the intelligence community went further.

Nine current and former officials in senior positions discussed the situation with the Washington Post, and some details of Flynns conversation were made public. As Congressman Trey Gowdy reminded FBI Director James Comey, leaking classified information carries a penalty of up to ten years.

The trampling of Flynns rights was of little concern to the left. And as the grievances continue to grow, outrage is still strangely muted.

The head of the House Intelligence Community, Congressman Devin Nunes, announced last week that on numerous occasions the intelligence community incidentally collected information about U.S. citizens involved in the Trump Transition. The collected communications of U.S. citizens appeared to have little or no apparent intelligence value but were nevertheless widely disseminated in intelligence community reporting.

The names of the Trump officials were unmasked and none of this surveillance was related to Russia or the investigation of Russian activities or of the Trump team, said Nunes.According to reporting, some of the unmasked conversations were innocuous discussions about Trumps children!

This information should alarm anyone concerned about protecting the rights of American citizens, especially when coupled with the Obama administrations last-minute executive order, E.O. 12333, which permits the NSA to share private communications widely around government.A curious last move for an outgoing administration accused of unauthorized unmasking of Trump transition officials communications.

Despite the law being changed to allow widespread dissemination of communications in some cases, according to Nunes, this change was implementedafter the apparent violations that took place in disseminating Trump transition officials communications.

Liberals should be alarmed at the accusations of wrongful surveillance of American citizens. The Fourth Amendment should not be a partisan issue but a cherished constitutional right that both parties seek to protect.

The liberal promotion of politics above constitutional principle is extremely concerning and threatening to the cherished values of our American democratic system.

Kayleigh McEnany is a CNN political commentator. She is a graduate of Harvard Law School and Georgetown Universitys School of Foreign Service, and she also studied politics at Oxford University. In addition to writing a column for Above the Law, she is a contributor for The Hill. She can be found on Twitter at @KayleighMcEnany.

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Liberal Silence Tramples The Fourth Amendment - Above the Law

Supreme Court Unanimously Upholds Fourth Amendment in Illinois … – The New American

The city of Joliet, Illinois, is about to find out just how costly its miscarriage of justice can be, now that the U.S. Supreme Court ruled unanimouslylast week that it cannot incarcerate an individual while he is awaiting trial, absent probable cause. Supreme Court Justice Elena Kagan was succinct in delivering the courts opinion:

The primary question in this case is whether Manuel [the petitioner] may bring a claim based on the Fourth Amendment to contest the legality of his pro-trial confinement.... We hold today that Manuel may challenge his pretrial detention on the ground that it violated [his] Fourth Amendment [rights]....

Manuels claim fits the Fourth Amendment, and the Fourth Amendment fits Manuels claim, as hand in glove.

What the ruling does is confirm 10 lower courts similar rulings, as Kagan noted: There is now broad consensus among the circuits that the Fourth Amendment right to be free from seizure but upon probable cause extends through the pretrial period.

It all began shortly after midnight, March 18, 2011 when Joliet police pulled over an automobile in which Elijah Manuel was riding, claiming that his brother who was driving failed to signal for a left turn. Rory Little, a law professor at the University of California Hastings College of Law, explained what happened next:

Elijah Manuel alleged that an officer pulled him from a car, beat him, called him racial slurs, and then arrested him for drugs even though a field test on pills Manuel was carrying came back negative. He further alleged that an evidence technician at the police station conducted another test on the pills that also came back negative, but that the technician falsely stated that the test was positive.

Another officer then swore out a complaint against Manuel; based on all these false statements, a county judge ordered Manuel to be detained. Manuel was not released until seven weeks later, after a state police lab reported that the pills contained no controlled substances and for unknown reasons, the state prosecutor waited a month to move for dismissal.

Two years later, Manuel sued the City of Joliet and its officers for violation of his civil rights under 42 U.S.C. 1983, alleging two Fourth Amendment violations: his false arrest and his prolonged unlawful post-arrest detention.

Manuel lost the first round with the district court ruling that he waited too long before filing his complaint and second that this wasnt a Fourth Amendment issue but a Due Process issue. When Manuel appealed, the appeals court upheld the lower courts decision. He THEN appealed to the U.S. Supreme Court, which reversed unanimously on March 21.

An Amicus Curiae (friendly brief) was filed on Manuels behalf by the U.S. Justice Foundation, the Downsize DC Foundation, the Conservative Legal Defense and Education Fund, the Institute on the Constitution, and the Gun Owners of America (GOA) and its foundation. This allowed these groups to present their point of view on the matter before the Supreme Court:

Petitioner Elijah Manuel has appropriately invoked the Fourth Amendment as a basis for his claim of malicious prosecution. Arrested without probable cause, Manuel was detained in actual custody for 48 days during which time the police falsified evidence before a grand jury leading to his arraignment on false charges which were dropped by the prosecutor only after discovery that the charges were baseless.

The Fourth Amendment guarantee against unreasonable searches and seizures is predicated on the right of the people to be secure in their persons, houses, papers, and effects. Viewed against its common law backdrop, the Amendments purpose and scope extend throughout any period of pretrial detention up to and including the day upon which all criminal charges are dropped.

During that time interval, the Fourth Amendment governs the actions of the arresting authorities. While the immediate effect of a violation of the Fourth Amendment is the deprivation of ones liberty, the interest protected by that Amendment is ones property rights.

The brief allowed the GOA to expand on one of its most salient and persuasive reasons for supporting the Fourth Amendment: the right to life and the reasonable implication that with that right comes the right to defend that life, with deadly force if necessary. As the GOA explained: This is why GOA is working to explain to courts that the Fourth Amendment protects each Americans property interests, including Americans property interest in their own body and firearms.

The Amicus Curiae will also likely serve Manuel and his attorneys well as they take the next step in obtaining justice by filing for damages against Joliet and its offending officers who were involved in this egregious miscarriage: Indeed, by wrongfully holding Manuel in pretrial detention for 48 days, the City of Joliet and its police officers caused him not only emotional distress, but harmed his reputation, inflicted out-of-pocket losses, and deprived him of employment opportunities.

Now that the Supreme Court has cleared the way, confirming 10 lower courts similar rulings, Manuel is likely to exact justice and restitution from Joliet, Illinois, while simultaneously performing the necessary warning to other localities abusive of precious rights such as the Fourth Amendment to the Constitution of the United States. Remember what Kagan concluded: We hold today that Manuel may challenge his pretrial detention on the ground that it violated [his] Fourth Amendment [rights].

Joliet, Illinois: Get ready to write a big check to Elijah Manuel.

An Ivy League graduate and former investment advisor, Bob is a regular contributor to The New American magazine and blogs frequently at LightFromTheRight.com, primarily on economics and politics. He can be reached at This email address is being protected from spambots. You need JavaScript enabled to view it..

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Supreme Court Unanimously Upholds Fourth Amendment in Illinois ... - The New American