You're getting veeeery sleepy...you're eyes are beginning to get heavy...
Just a sec. Oops...nevermind. You were already asleep.
Please, exactly, what is unconstitutional about these new guidelines?Okay, I've read the guidelines. Have you? I'm ready to discuss them.
As to what is "unconstitutional about these new guidelines"...that is what our discussion should reveal.
While there is nothing stating outright "these new guidelines are unconstitutional", nor should one expect there to be such an open admission, I do find some of it alarming.
To start matters off, I find this distrubing in light of the statements like undesirable individuals may be neded to work undercover. The screening process precludes many "unsavory individuals" from being used as CIs.
THE ATTORNEY GENERAL'S GUIDELINES REGARDING THE USE OF CONFIDENTIAL INFORMANTS
II. REGISTERING A CONFIDENTIAL INFORMANT
A. SUITABILITY DETERMINATION
1. Initial Suitability Determination
Prior to utilizing a person as a CI, a case agent of a JLEA shall complete and sign a written Initial Suitability Report and Recommendation, which shall be forwarded to a Field Manager for his or her written approval. In completing the Initial Suitability Report and Recommendation, the case agent must address the following factors (or indicate that a particular factor is not applicable):
a. the person's age;
b. the person's alien status;
c. whether the person is a public official, law enforcement officer, union official, employee of a financial institution or school, member of the military services, a representative or affiliate of the media, or a party to, or in a position to be a party to, privileged communications (e. g., a member of the clergy, a physician, or a lawyer);
d. the extent to which the person would make use of his or her affiliations with legitimate organizations in order to provide information or assistance to the JLEA, and the ability of the JLEA to ensure that the person's information or assistance is limited to criminal matters;
e. the extent to which the person's information or assistance would be relevant to a present or potential investigation or prosecution and the importance of such investigation or prosecution;
f. the nature of any relationship between the CI and the subject or target of an existing or potential investigation or prosecution, including but not limited to a current or former spousal relationship or other family tie, and any current or former employment or financial relationship;
g. the person's motivation in providing information or assistance, including any consideration sought from the government for this assistance;
h. the risk that the person might adversely affect a present or potential investigation or prosecution;
i. the extent to which the person's information or assistance can be corroborated;
j. the person's reliability and truthfulness;
k. the person's prior record as a witness in any proceeding;
l. whether the person has a criminal history, is reasonably believed to be the subject or target of a pending criminal investigation, is under arrest, or has been charged in a pending prosecution;
m. whether the person is reasonably believed to pose a danger to the public or other criminal threat, or is reasonably believed to pose a risk of flight;
n. whether the person is a substance abuser or has a history of substance abuse;
o. whether the person is a relative of an employee of any law enforcement agency;
p. the risk of physical harm that may occur to the person or his or her immediate family or close associates as a result of providing information or assistance to the JLEA; and
q. the record of the JLEA and the record of any other law enforcement agency (if available to the JLEA) regarding the person's prior or current service as a CI, Cooperating Defendant/ Witness, or Source of Information, including, but not limited to, any information regarding whether the person was at any time terminated for cause.
I also found this rather disturbing...
Lawful, Warrantless Monitoring of Verbal Communications
II. NEED FOR WRITTEN AUTHORIZATION
A. Investigations Where Written Department of Justice Approval is Required
A request for authorization to monitor an oral communication without the consent of all parties to the communication must be approved in writing by the Director or Associate Director of the Office of Enforcement Operations, Criminal Division, U. S. Department of Justice, when it is known that:
(1) the monitoring relates to an investigation of a member of Congress, a federal judge, a member of the Executive Branch at Executive Level IV or above, or a person who has served in such capacity within the previous two years;
(2) the monitoring relates to an investigation of the Governor, Lieutenant Governor, or Attorney General of any State or Territory, or a judge or justice of the highest court of any State or Territory, and the offense investigated is one involving bribery, conflict of interest, or extortion relating to the performance of his or her official duties;
(3) any party to the communication is a member of the diplomatic corps of a foreign country;
(4) any party to the communication is or has been a member of the Witness Security Program and that fact is known to the agency involved or its officers;
(5) the consenting or nonconsenting person is in the custody of the Bureau of Prisons or the United States Marshals Service; or
(6) the Attorney General, Deputy Attorney General, Associate Attorney General, any Assistant Attorney General, or the United States Attorney in the district where an investigation is being conducted has requested the investigating agency to obtain prior written consent before conducting consensual monitoring in a specific investigation.
In all other cases, approval of consensual monitoring will be in accordance with the procedures set forth in part V. below.
Lords and serfs? I'm going to call that "The Mole Clause".
And what do you think of this...
THE ATTORNEY GENERAL'S GUIDELINES ON FEDERAL BUREAU OF INVESTIGATION UNDERCOVER OPERATIONS
C. INVESTIGATIONS
(1) A general crimes investigation may be initiated by the FBI when facts or circumstances reasonably indicate that a federal crime has been, is being, or will be committed. The investigation may be conducted to prevent, solve, or prosecute such criminal activity.
The standard of "reasonable indication" is substantially lower than probable cause. In determining whether there is reasonable indication of a federal criminal violation, a Special Agent may take into account any facts or circumstances that a prudent investigator would consider. However, the standard does require specific facts or circumstances indicating a past, current, or future violation. There must be an objective, factual basis for initiating the investigation; a mere hunch is insufficient.
We don't need no stinkin' probable cause! We just need "reasonable indication".
Or this from the same place...
A racketeering enterprise investigation may be initiated when facts or circumstances reasonably indicate that two or more persons are engaged in a pattern of racketeering activity as defined in the Racketeer Influenced and Corrupt Organizations Act (RICO). However, the USA PATRIOT ACT (Public Law 107-56) expanded the predicate acts for RICO to include the crimes most likely to be committed by terrorists and their supporters, as described in 18 U. S. C. 2332b( g)( 5)( B). To maintain uniformity in the standards and procedures for criminal intelligence investigations relating to terrorism, investigations premised on racketeering activity involving offenses described in 18 U. S. C. 2332b( g)( 5)( B) are subject to the provisions for terrorism enterprise investigations rather than those for racketeering enterprise investigations.
A terrorism enterprise investigation may be initiated when facts or circumstances reasonably indicate that two or more persons are engaged in an enterprise for the purpose of:
(1) furthering political or social goals wholly or in part through activities that involve force or violence and a federal crime,
(2) engaging in terrorism as defined in 18 U. S. C. 2331( 1) or (5) that involves a federal crime, or
(3) committing any offense described in 18 U. S. C. 2332b( g)( 5)( B). As noted above, criminal intelligence investigations premised on a pattern of racketeering activity involving an 18 U. S. C. 2332b( g)( 5)( B) offense are also treated as terrorism enterprise investigations.
Which has this later on...
While no particular factor or combination of factors is required, considerations that will generally be relevant to the determination whether the threshold standard for a terrorism enterprise investigation is satisfied include, as noted, a group's statements, its activities, and the nature of potential federal criminal law violations suggested by its statements or activities. Thus, where there are grounds for inquiry concerning a group, it may be helpful to gather information about these matters, and then to consider whether these factors, either individually or in combination, reasonably indicate that the group is pursuing terrorist activities or objectives as defined in the threshold standard. Findings that would weigh in favor of such a conclusion include, for example, the following:
Snip...(2) Apparent ability or intent to carry out violence or other covered activities: The enterprise manifests an apparent ability or intent to carry out violence or other activities within the scope of 18 U. S. C. 2331( 1) or (5) or 2332b( g)( 5)( B), e. g.:
(i) by acquiring, or taking steps towards acquiring, biological agents or toxins, toxic chemicals or their precursors, radiological or nuclear materials, explosives, or other destructive or dangerous materials (or plans or formulas for such materials), or weapons, under circumstances where, by reason of the quantity or character of the items, the lawful purpose of the acquisition is not apparent;
(ii) by the creation, maintenance, or support of an armed paramilitary organization;
(iii) by paramilitary training; or
(iv) by other conduct demonstrating an apparent ability or intent to injure or intimidate individuals, or to interfere with the exercise of their constitutional or statutory rights.
Did I mention this...
Lawful, Warrantless Monitoring of Verbal Communications
The Fourth Amendment to the United States Constitution, Title III of the Omnibus Crime Control and Safe Streets Act of 1968, as amended (18 U. S. C. §2510, et seq.), and the Foreign Intelligence Surveillance Act of 1978 (50 U. S. C. §1801, et seq.) permit government agents, acting with the consent of a party to a communication, to engage in warrantless monitoring of wire (telephone) communications and oral, nonwire communications. See United States v. White, 401 U. S. 745 (1971); United States v. Caceres, 440 U. S. 741 (1979). Similarly, the Constitution and federal statutes permit federal agents to engage in warrantless monitoring of oral, nonwire communications when the communicating parties have no justifiable expectation of privacy. 2 Because such monitoring techniques are particularly effective and reliable, the Department of Justice encourages their use by federal agents for the purpose of gathering evidence of violations of federal law, protecting informants or undercover law enforcement agents, or fulfilling other, similarly compelling needs. While these techniques are lawful and helpful, their use in investigations is frequently sensitive, so they must remain the subject of careful, self-regulation by the agencies employing them.
The sources of authority for this Memorandum are Executive Order No. 11396 (" Providing for the Coordination by the Attorney General of Federal Law Enforcement and Crime Prevention Programs"); Presidential Memorandum (" Federal Law Enforcement Coordination, Policy and Priorities") of September 11, 1979; Presidential Memorandum (untitled) of June 30, 1965, on, inter alia, the utilization of mechanical or electronic devices to overhear nontelephone conversations; the Paperwork Reduction Act of 1980 and the Paperwork Reduction Reauthorization Act of 1986, as amended; and the inherent authority of the Attorney General as the chief law enforcement officer of the United States.
Isn't that "Special!
I personally "voluntarily consent" to nothing and do state so!
I find that much of these new guidelines remove any trace of accountability to the upper echelon of the agencies. Many of the decisions have been placed with midlevel functionaries and allows "the big dogs" to say "I wasn't informed of that", just like it has been.
JMO.
