Do a Google News search for “h.r. 6304” and you’ll get over a thousand news articles. Add the term “physical search,” or “physical searches,” or even just “physical,” and how many news articles come up? Zero, zero, zero.
And yet there is an entire section of H.R. 6304 that has to do with authorizations for physical searches. Not electronic searches of communications. Physical searches.
Section 107 of Title IV of H.R. 6304 is entitled “Amendments for Physical Searches.” After initial text which edits currently existing law on physical searches, the following amendment is added to it:
(e)(1) Notwithstanding any other provision of this title, the Attorney General may authorize the emergency employment of a physical search if the Attorney General—
(A) reasonably determines that an emergency situation exists with respect to the employment of a physical search to obtain foreign intelligence information before an order authorizing such physical search can with due diligence be obtained;
(B) reasonably determines that the factual basis for issuance of an order under this title to approve such physical search exists;
(C) informs, either personally or through a designee, a judge of the Foreign Intelligence Surveillance Court at the time of such authorization that the decision has been made to employ an emergency physical search; and
(D) makes an application in accordance with this title to a judge of the Foreign Intelligence Surveillance Court as soon as practicable, but not more than 7 days after the Attorney General authorizes such physical search.
(2) If the Attorney General authorizes the emergency employment of a physical search under paragraph (1), the Attorney General shall require that the minimization procedures required by this title for the issuance of a judicial order be followed.
(3) In the absence of a judicial order approving such physical search, the physical search shall terminate when the information sought is obtained, when the application for the order is denied, or after the expiration of 7 days from the time of authorization by the Attorney General, whichever is earliest.
(4) A denial of the application made under this subsection may be reviewed as provided in section 103.
(5) In the event that such application for approval is denied, or in any other case where the physical search is terminated and no order is issued approving the physical search, no information obtained or evidence derived from such physical search shall be received in evidence or otherwise disclosed in any trial, hearing, or other proceeding in or before any court, grand jury, department, office, agency, regulatory body, legislative committee, or other authority of the United States, a State, or political subdivision thereof, and no information concerning any United States person acquired from such physical search shall subsequently be used or disclosed in any other manner by Federal officers or employees without the consent of such person, except with the approval of the Attorney General if the information indicates a threat of death or serious bodily harm to any person.
(6) The Attorney General shall assess compliance with the requirements of paragraph (5).
My understanding of this text:
1. The “notwithstanding” phrase means that this text supercedes checks and balances elsewhere in the bill.
2. If the President’s Attorney General determines there is an emergency, then government agents can engage in a physical search of anyone without a warrant, and continue that search for up to seven days.
3. After the fact, a secret FISA court judge will determine whether the warrantless physical search was actually for the purposes of collecting foreign intelligence information and whether a factual basis for the physical search occurred.
4. Regardless of whether the secret FISA court judge determines the warrantless physical search to be appropriate or not, the President’s Attorney General can use any information obtained in the search by invoking the need to protect the public from death or harm. Only the Attorney General can determine whether the Attorney General is right about this.
That’s an astounding amount of arbitrary, unchecked power concentrated in a member of the president’s cabinet. But there are no news organizations covering this aspect the bill, and no blogs either (save one). Why?