The FBI and the Trouble With Secret Warrants

By David K. Shipler

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 person or things to be seized.

--The Fourth Amendment to the US Constitution

               

 The FBI, yet again, lied to the court, whose chief judge didn’t do her job properly and then excoriated the FBI. Republicans, who enacted and defended the secret system that permits such abuse, are suddenly in high dudgeon since the victim is one of their own. That’s the brief summary of the controversy over surveillance done on Carter Page, a campaign aide to Donald Trump. Whether something good comes out of the episode is an open question.

  There are basically two legal ways for the government to listen to your phone calls, read your emails, search your house, and invade other areas of your private life. One is with a traditional search warrant, signed by a judge after law enforcement swears that probable cause exists to believe that certain evidence of a specific crime will be found at a particular place and time. The other is with a secret court order under the Foreign Intelligence Surveillance Act (FISA), which requires something quite different: probable cause that you are an agent of a foreign power, meaning either a government or a terrorist organization. No crime need be involved, and the standard of particularity is largely waived.

                Other differences are notable. In a criminal case, the warrant is eventually disclosed and might be presented to the target at his door if he’s home as police arrive to do the search. He ultimately learns details of the searches. Theoretically, he should be able to see the affidavit on probable cause that the police submitted to the judge, so his lawyer can challenge the warrant’s basis and move in court to suppress the resulting evidence. However, in the experience of Richard Foxall, a defense attorney in California, judges rarely allow the defense to inspect the affidavits. (See Foxall's comment below.) That check on law enforcement doesn’t prevent all official wrongdoing, but it helps.

                No such transparency exists in FISA warrants. Not only are they issued in secret by judges in a secret court, they are executed without notice to the target and are never disclosed unless the government chooses to use the resulting evidence in a criminal trial, and even then the affidavits themselves are usually considered classified. Occasionally the FISA material is used as a basis for an ordinary criminal warrant, but defense lawyers are usually blocked from seeing the original application.

Can the FBI Be Trusted?

By David K. Shipler

            On a March weekend in 2004, senior fingerprint examiners were called urgently into work at the FBI crime lab in Quantico, Virginia. A print had come in from the Spanish National Police, found on a blue plastic bag of detonators discovered after ten bombs had blown up on trains in Madrid, killing 191 passengers and wounding more than 1,400. Under stress, the examiners hastily matched the print—erroneously—to Brandon Mayfield, an Oregon lawyer who had converted to Islam.

This case is worth recalling in light of the current uproar over Hillary Clinton’s emails, because it provides rare insight into the FBI’s capacity for circular reasoning and sloppy forensics—even downright intellectual dishonesty. Time and again over the years, Americans have seen that alongside the many fine FBI agents are lazy thinkers who filter evidence to suit their imagined theory of a crime, and who prejudge people based on religion and ethnicity.

The agency is less nefarious than under Director J. Edgar Hoover, when it launched covert operations against civil rights and antiwar activists, but it remains well below its mythical high standards. Given the rules-be-damned posture of its current director, James Comey, it needs to be watched closely.

Mayfield was arrested as a material witness, his reputation was shredded, his family was traumatized, and his law practice was severely damaged before he was cleared—not by the FBI but by the Spanish police, who kept insisting that the print was not a match at all. In the end, the FBI’s misdeeds cost taxpayers $2 million to settle Mayfield’s lawsuit.