Posted 1:46 PM by Robert

Contra Adragna II

Mr. Adragna has returned, notwithstanding his previous assertion that he was "through debating Mr. 'Musil.'" He says he "must respond."

WELCOME BACK, MR. ADRAGNA - I NEVER BELIEVED YOU FOR A MOMENT, ANYWAY!

Mr. Adragna seems to be a little unsure exactly who he "must respond" to - since his post highlights the part of mine which paraphrases Mickey Kaus. But this is a detail! Mr. Adragna is upset with the part of both my suggestion and Mr. Kaus' suggestion that a search should be permitted where there is a belief that the subject of the search is "involved in some sort of crime" - possibly plus or minus other factors. Mr. Adragna says that the FISA standard is already lower than that:

"Actually, the standard under FISA is lower than "a belief that he's involved in some sort of crime." All you need do for "probable cause" to obtain a FISA electronic surveillance warrant is show that: (A) the target of the electronic surveillance is a foreign power or an agent of a foreign power; and (B) each of the facilities or places at which the electronic surveillance is directed is being used, or is about to be used, by a foreign power or an agent of a foreign power."

Now, this is a curious argument, since Agent Rowley clearly had a belief - a reasonable belief - that Zacarias Moussaoui was likely involved in some sort of crime. So there is no real question that if, as I suggested, the standard for searching a non-US citizen were simply a reasonable belief by the intelligence services that a non-US citizen is involved in some sort of crime, Agent Rowley would have searched Mr. Moussaoui's computer. Of course, in this context, "belief" and "reasonable suspicion" mean essentially the same thing - and if THAT is what Mr. Adragna is fulminating about, I am pleased to clarify the point. But, frankly, that DOESN'T seem to be what he is fulminating about.

Agent Rowley did not conduct her search, and her superiors in Washington did not believe she had satisfied the FISA "probable cause" standard. This was exactly because the FISA standard is not "lower" than the standards suggested by Mr. Kaus or the Man Without Qualities. Rather, the FISA standard takes a detour by requiring a demonstration that (A) the target of the electronic surveillance is a foreign power or an agent of a foreign power; and (B) each of the facilities or places at which the electronic surveillance is directed is being used, or is about to be used, by a foreign power or an agent of a foreign power. Mr. Kaus can speak for himself, but I have not suggested - and I do not read Mr. Kaus as suggesting - that a search should not be justified where these conditions are met. Rather, I (and, I believe, Mr. Kaus) are suggesting that an additional category of permissible searches should be created - where there is a belief (or reasonable suspicion) that the target is involved in some kind of crime - regardless of whether "(A) the target of the electronic surveillance is a foreign power or an agent of a foreign power; and (B) each of the facilities or places at which the electronic surveillance is directed is being used, or is about to be used, by a foreign power or an agent of a foreign power." But whatever else can be said, Mr. Adragna seems to be dead wrong when he says the FISA standard is strictly weaker than those proposed by Mr. Kaus or the Man Without Qualities.

Similarly, Mr. Adragna's argument about warrantless searches only holds up where the Attorney General (or other authorized high official) "certifies in writing under oath" that the "the physical search is solely directed at premises, information, material, or property used exclusively by, or under the open and exclusive control of, a foreign power or powers and (ii) there is no substantial likelihood that the physical search will involve the premises, information, material, or property of a United States person." The first part of this certification was exactly the issue that stopped Agent Rowley from obtaining her warrant - and a responsible officer of the United States does not certify things under oath which are subject to ongoing, good-faith dispute.

More generally, even assuming that an electronic scan of a computer is a "physical search," how could the Attorney General (or any other official) realistically provide either of these certifications in writing under oath either in this case or in most cases? On what basis can one certify under oath that "the physical search is solely directed at premises, information, material, or property used exclusively by, or under the open and exclusive control of, a foreign power or powers" unless the certifying official knows for a fact that the targeted property (here, Mr. Moussaoui's computer) is "under the open and exclusive control of, a foreign power or powers." Does the FBI know today for a fact that Mr. Moussaoui's didn't share his computer with someone else? Similarly, how could John Ashcroft certify under oath that there was "no substantial likelihood that the physical search [of Mr. Moussaoui's computer] will involve the premises, information, material, or property of a United States person?"

Most people take making statements under oath very seriously. Certifying under oath as to facts one does not know to be true is called "perjury." Mr. Adragna's argument bottoms on his apparent belief that John Ashcroft and every other authorized officer should share Bill Clinton's cavalier attitude towards committing perjury.

How exciting to discover in practice part of Bill Clinton's enduring legacy!