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Neglected Portion of H.R. 6304: Physical Searches Are Covered, Too

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?


9 Responses

  1. Great research and a very good question. Why isn’t this being reported?

  2. Thank you for the analysis, Track.

    I haven’t even had time to read this bill. By the time I do, it will be too late.

    The government already has the power to wiretap with a court order, and the FISA courts approve practically every request that is made. They can also start wiretapping first and get a court order later. So why is this bill so necessary at all?

    Maybe there is some secret evidence that is not being presented to the public? We have all seen what happens when congress votes on secret information. That’s how we got into Iraq. The government said “trust us, we have classified information”, the senators were briefed in secret , and we ended up with a war all right, but where are the Weapons of Mass Destruction we went in there to get? There was no secret evidence–it was all fabricated. Now the government is again saying “trust us”.

    The text of the bill is now available at Thomas, which also shows a motion for closure has been introduced in the Senate.


    They will try to vote on the bill this week. [site sdit]

    We need to stop making plans and start making phone calls.

    So far the focus of the phone calls has been to the Obama campaign. There are reports that those who now try to call his public phone numbers cannot get through.

    ALL the senators should be receiving phone calls–the ones who are in favor of FISA and the ones who oppose it. Their phones should ALL be tied up, their fax machines should ALL be out of paper. Let them talk about that when they see each other in the Senate cafeteria and the Senate gym.

    What about a putting call to action at the top of this webpage with the senate phone number?

  3. Sorry, typo, it should read: “They will try to vote on the bill this week.”

  4. […] immunity provisions. Sadly, that’s only a small part of the larger picture; H.R. 6304 includes provisions authorizing warrantless physical searches of Americans. Further, the increased accountability that Democrats are claiming as the positive side of the bill […]

  5. […] immunity provisions. Sadly, that’s only a small part of the larger picture; H.R. 6304 includes provisions authorizing warrantless physical searches of Americans. Further, the increased accountability that Democrats are claiming as the positive side of the bill […]

  6. […] It then (as Sec 105 did for electronic surveillance) strikes the existing rules for emergency orders of physical searches (which are nearly identical to the existing ones for electronic searches) and replaces them.  The new law is basically the same as what Sec 105 made for electronic surveillance.  If the Attorney General ‘reasonably’ believes a warrant would be awarded he may order the search before filing an application, which he has seven days (instead of the 72 hours allowed in existing law) to file with the FISA court.  As it turns out tracking2008 has a good eye, and caught something I did not catch in Sec 105 that is both there and here:  Information obtained from both physical searches and electronic surveillances without a FISA court warrant (either before or after the fact) is inadmissible as evidence before any governmental authority–except when employed to prevent imminent death or direct harm.  I caught that part, and was ok with that.  What I missed, but tracking2008 caught was the clause just underneath that which reads: “(6) The Attorney General shall assess compliance with the requirements of paragraph (5)” this means that only the Attorney General gets to decide if illegally obtained information (meaning information obtained without FISA court blessing) is misused.  This was NOT in the existing law, and is something we should be very concerned about.  It runs against the very principle of checks and balances 50 U.S.C. as a whole.  My thanks to tracking2008 for catching that in his post. […]

  7. The integrity, security and safety of our national telephone and Internet communications systems must become a major concern as we look forward to Change in November.

    Private government contractors monitor all U.S. telephone and Internet communications. Some of these private contractors are corrupt or have weak internal controls.

    60-70% of the National Security Agency and the CIA’s National Clandestine Services budgets are paid to private contractors. See http://HappinessHacker.com for links to NYTimes articles and respected sources that document private government contractor concerns.

    Do you think all these private security contractors are honest and honorable?

    The War on Terror is a $100+ billion industry, the people and organizations profiting from it will not let go easily.

    Can we have fair and free elections in November if our telephone and Internet communications systems are compromised?

    Please give this issue some attention.

  8. My brother recommended I might like this internet site.
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