Articles Posted in Legal News / Legal Information

Porous borders and the ease of international travel can create a legal nightmare for even the most innocent of travelers.

For example, a Swiss citizen traveling in the United States and renting an automobile can have a traffic ticket in any of a number of States and run afoul of a myriad of conflicted laws and rules as to extradition. For many business travelers conducting business in one nation, they may run afoul of anti-competitive laws, charges of price fixing or bribery. Often, these business practices are non-criminal in one nation and criminalized in another.

In analyzing an extradition case, start by obtaining the charging document from the Requesting Nation and listing the elements of the alleged crime. Step two is to obtain and read the extradition treaty in effect at the time of the event, or, at the time the Requesting Nation notifies the Requested Nation that extradition is sought. Step three is to define citizenship for each of the persons/parties involved. An accused who is a citizen of Switzerland accused of a crime against a U.S. citizen has a different treaty status than a U.S. citizen who resides in Switzerland and is wanted in the U.S. to face criminal charges. Dealing with even minor traffic infractions can have profound negative results. When entering the U.S., Homeland Security will arrest and detain you for an unpaid traffic infraction. You can remain in custody while Homeland Security contacts the State and asks if the State will pay the cost of transporting the individual. After a delay that can mean 60 days in a customs holding facility, the next step is removal, or denial, of entry into the United States. I’ll use Switzerland as an example to set a roadmap of what to ask and how to proceed. The steps are: Defining the elements of the charge, read the treaty, and identify the nationality of the accused and of the victim(s).

Switzerland and the United States have entered into treaties of extradition in 1900, in 1935, in 1940, and again in 1995. Understanding the process of extraditing United States citizens from Switzerland to face prosecution involves two basic issues: defining the crime and the national policy of the two nations. To understand the first stage we can review the case of the American film artist Roman Polanksi. Polanski entered Switzerland from France (where he lived at that time) to attend a film festival. At the request of the State of California (expedited through the State Department of the United States), Polanski was detained pending removal from Switzerland to the United States and then ultimately to California. He was never actually removed to the U.S. even though the U.S. alleged he failed to appear at his sentencing. His lawyers litigated the matter in equity in Switzerland and won. The Polanski case illustrates that by defining the elements of the Indictment charges (the ‘crime’) into the laws of the Requested Nation (Switzerland in the Polanski case) the results can be different. A good lawyer can mean the difference between a “routine” extradition or a blocked extradition. That is what happened in the Roman Polanski case, and it is an excellent study in the art of lawyering in the complexity of international extradition treaty law.

In all cases ask, “Is the crime charged in the United States also a crime in Switzerland?” Switzerland by treaty will not detain and extradite persons charged with financial crimes unless they are related to another crime, such as one of violence. Tax evasion is a crime in the United States but Switzerland will not detain and surrender a person charged with failure to pay taxes. Article Two of the Extradition Treaty with Switzerland states that the crime charged must be a crime in both the Requesting Nation and the Requested Nation before Switzerland can be compelled to extradite. Sex crimes are another example. In Switzerland, the age of consent for a sex act is sixteen years of age. In most, if not all states in the United States, the age of consent is eighteen. If the United States requests Switzerland to extradite a Swiss national for a sex act within the United States, the age of the purported victim may preclude extradition. If there is any degree of force or the threat of force, then the sex act is an act of violence and the age of consent issue is subsumed by the element of the use of force and extradition will be undertaken by the Swiss. Extradition from any nation to the United States begins with reading the treaties in effect between nations. Also, be mindful that although a nation may not be required by treaty to extradite they can extradite someone anyway. An extradition may be litigated in the nation of origin but once removed and transported the Requesting Nation may not secede jurisdiction if extradition is litigated there.

One of the least understood but most powerful constitutional rights, the Due Process Clause, is the escape route for those as yet un-charged in the ongoing Scott Rothstein prosecutions.

The Due Process dismissal defense, widely used outside of Florida, is dis-favored by most Florida criminal defense lawyers. The motion is based on a little known United States Supreme Court case from 1971, U.S. v Marion. Marion holds that the Due Process clause guarantees a dismissal when the delay between the date of the incident and the filing of an indictment has the result of crippling the defendant’s defense. Marion, and the Lovasco, Howell and Griffin cases compel reluctant judges to dismiss charges. This motion merely has to allege that the length of the delay has prejudiced the defense, and present the court with the reasons the defendant has been prejudiced. Most often witnesses’ memories fade; evidence that would have helped the defendant is lost, misplaced or destroyed, or the delay blind-sided the defendant to his detriment. The burden shifts to the government once a defendant has asserted the delay has made it difficult or just harder to defend himself. The only response that can save the case for the government is that the government has some compelling reason to explain the delay.

In the Rothstein matter, it is hard to understand why the government has sat on this case so long. Filed in 2009, but known to the government since 2007; it is now 2014. Buried in Florida’s case law are a parallel series of cases that make this line of defense available under Florida as well as federal law: the cases are the Barber, Newman, and the Howell cases. I’ve had judges take prosecutors to the proverbial legal woodshed for a major tongue lashing when the judge hears the hollow reasons for the delays. Sometimes we hear that the detective took a vacation and misplaced the case (for four years), or someone had a promotion and left the file in the drawer. The most likely excuse from the government’s delay in filing indictments in the Rothstein matter is…..well I’d like to hear it! Would you?

On the same day that the news reported a shooting at a high school in Reynolds, Oregon, the United States Supreme Court issued a landmark decision on gun control. In this case, which came out of Tennessee, a gun owner with a conviction for misdemeanor domestic violence had to surrender his guns. He ran afoul of a new federal gun statute denying gun ownership upon conviction of enumerated crimes. Domestic violence convictions are included in crimes that prohibit gun ownership.

The U.S. Supreme Court upheld the federal law overruling the Tennessee court: Tennessee had returned his guns. The Supreme Court ruled unanimously against Mr. Castleman who argued that the rights of the gun owner trump public policy of banning gun ownership to convicted persons.

How does that impact the shooting in the Reynolds, Oregon school? The question is who owned the gun and how did the fourteen year old take possession and then enter the school. The nexus is not the right to bear arms but the right to use them. The Supreme Court case, which upheld gun ownership in 2008, said in its ruling that the Constitution does not permit “the absolute prohibition of handguns held and used for self-defense in the home,” and Justice Scalia wrote of the right to use firearms for hunting. District of Columbia v. Heller held that firearms can be owned for self defense. In District of Columbia v. Heller, the Justices wrote: “we held that the Second Amendment protects the right to keep and bear arms for the purpose of self-defense, and we struck down a District of Columbia law that banned the possession of handguns in the home.” Nowhere does it create an unlimited right to own and bear arms.

What comes next in Oregon is a bigger legal issue. Using a gun for self-defense: OK; Using a gun for hunting: OK; But any other use is where vicarious criminal liability comes in. Watch this: if the student in the Reynolds, Oregon school shooting took the gun from his home, and the gun owner (Mom or Dad) had a conviction for a crime which prohibits gun ownership, then the possession was unlawful and they can be arrested for facilitating the felony of murder. If the gun was stolen or taken without permission, then there is criminal liability for the provider who failed to maintain control.

The thread of gun ownership and gun use is the crux of the anti-gun lobby and this shooting in Oregon will open a floodgate of criminal arrests for anyone who can be connected to the student who shot the teacher and student in Reynolds, Oregon. Remember what the Supreme Court said in these two cases: gun ownership for self-defense and hunting: OK. Gun ownership can be denied for conviction of enumerated crimes. Having the right to own a gun and having the right to use it is where the screw will turn. The National Rifle Association and defenders of gun rights have to now deal with an entire new wave of legal issues. The anti-gun lobby will seek to further restrict the right of law-abiding citizens to own, carry and use their guns. The Second Amendment must be turning in its metaphoric grave and gun owners need to speak with a united voice to push back against those who will limit gun ownership or you may be permitted to own a gun but you may not be permitted to use it.

The World Justice Project defines itself in terms of its mission: “To increase public awareness about the foundational importance of the rule of law, stimulate government reforms, and develop practical programs at the community level.” The 2014 index rankings are as follow:

Denmark, Norway, Sweden, and Finland scored as the top four rankings of the World Justice Project’s 2014 “Rule of Law Index”. The United States ranked #19 just ahead of Uruguay (#20) Chile (#21) and Poland (#22). Estonia (#15) beat the USA.

Scores are based on nine factors:

1. Constraints on Government Powers
2. The Absence of Corruption
3. Open Government
4. Fundamental Rights
5. Order and security
6. Regulatory Enforcement
7. Civil Justice
8. Criminal Justice

9. Informal Justice [Think religious courts, tribal controls and deep rooted cultural norms].

When Fundamental Rights were measured, the U.S. came in #27. Fundamental rights were defined by The World Justice Project as a measurement of how effectively countries uphold and protect rights and freedoms established under international law. These rights include equal treatment under the law, the absence of discrimination, due process, and personal security, freedom of religion, expression of opinions, rights of the accused, assembly and labor rights.

When measuring Order and Security, crimes such as homicide, kidnapping, burglary armed robbery, extortion, fraud and the commonality of the use of inter-personal violence to resolve conflict, the United States came in at #18, behind Uzbekistan (#5), the United Arab Emirates (#9), Malaysia (#12) and the Republic of Georgia (#17). In the category of Absence of Corruption, the U.S. ranked # 21, behind Korea (#16) Estonia (#18) and France (#20). When measuring Civil Justice, which is how societies provide for ordinary people to resolve grievances and remedies through peaceful and effective civil manner, rather than resorting to violence or self-help, the United States scored at #27. Ahead of the U.S. is Korea (#10), Estonia (#15), Uruguay (#17) and Jordan (#21). In measuring Criminal Justice, the U.S. came in at #22, behind the United Arab Emirates (#7), the Republic of Korea (#8), and Estonia (#13) and just after the U.S. came Botswana at #23. The World Justice Project defines an effective criminal justice system as one that is capable of investigating, prosecuting, adjudicating and punishing criminal offenses successfully, reliably and in a timely manner through a system that is impartial and non-discriminatory, as well as free of corruption and improper government influence.

The World Justice Project Rule of Law Index for 2014 is the fourth in its annual report series. It is based on a comprehensive data set drawing from primary sources. In preparing its annual report, the World Justice Project drew upon over 100,000 experts and household surveys in over one hundred countries. It defines itself as, a “quantitative assessment tool designed to provide a comprehensive picture of the extent to which countries adhere to the rule of law in practice.” See the World Just Project Rule of Law Index. The WJP says its Index is the most comprehensive index of its kind, reflecting the actual conditions experienced by the population. Heads of state, chief justices, business leaders, public officials, and the press have cited the report.

For more articles on the WJP Rule of Law Index, see:

• Forbes: Top 10 countries where justice prevails
• Times.com: Want justice? Try Scandinavia
• ABA Journal: Aggressive action—not tinkering—is required to resolve the access to justice crisis

Wars consume warriors unless a community declares war on itself. In the United States, we are coming off a long run of enhanced penalties, minimum mandatory prison sentences, incarcerating addicts, and life-terming fully one in nine of those in custody. The National Association of Criminal Defense Lawyers issued a thorough report at the Open Society Foundation in Washington D.C. Read it after my review of the salient findings: it is a sobering tour of the results of a societal effort to reduce crime.

The report tells us that over sixty-five million Americans (one in four) have a criminal record. A criminal record limits lives to underclass status…permanently. Felons cannot vote. Felons are disqualified from most professions. Felons cannot obtain student loans. Felons cannot reside in Public Housing. Felons are denied educational and training programs. A household living in a public housing facility cannot receive back into their home a convicted felon family member; the entire family must be removed for housing a convicted felon. The systemic isolation and denial of the tools for rehabilitation serve neither the victim nor the community. Someone with a felony conviction is limited in his or her employment opportunities, housing and credit. In one generation, the U.S. prison population has gone up by a factor of four, as there are 2,200,000 inmates in U.S. jails and prisons, which is five to ten times the incarcerated rate of other democratic nations. One in nine inmates are in for life terms. Both Human Rights Watch and The National Academy of Sciences have researched and written on this issue.

A criminal event is both life altering and life limiting, to the victim, to the accused and to the community at large. Increasingly, as our world becomes more complex, it becomes more crushing. Addiction and incarceration are so prevalent in the population of convicted felons as to out-represent all other criminal categories including sex crimes, murders, arson, and battery. With such a substantial number of convicted felons with substance abuse, it raises questions as to the appropriate approach to addictive disorders as opposed to pure criminality. Over fifty percent of those in our State prisons are there for non-violent crimes. If the purpose of a criminal sanction, once incarceration is complete, is to rehabilitate and reform, it must deal with the reality once created that defeats this purpose. Sanctions without end and societal mars that permanently create a growing underclass, serves neither the victim, society, or a rational purposeful and directed criminal justice objective. The fact that the Congress has taken up this subject in modifying the federal sentencing guidelines underscores the policy considerations under review. It is for all of us, in the legal or government field to be informed and armed with information to carry the debate from the courtrooms to the classrooms and boardrooms. The NACDL Task Force on the Restoration of Rights and Status After Conviction held hearings and testimony from 150 witnesses before drafting the report. The report summarizes its findings with ten recommendations for policy-makers in government.

Fort Lauderdale police agencies have technology to read license plates. Once read, the plates are matched against outstanding traffic tickets. In addition, the owner’s name is matched against outstanding criminal warrants. At what point does constitutional rights run up against and, in effect, trump technologies that enhance surveillance? When does directed and focused surveillance of known criminal activities cross a constitutional barrier of blanket monitoring of citizenry?

The Los Angeles Police Department has 240 car-mounted scanners and 30 fixed scanners. The Los Angeles Sheriff’s Department (a separate police agency) has 84 vehicles with scanners and 47 fixed-location scanners.

The public debate on the use and sale of the information is being addressed in California. Jerry Hill, a California State Senator has introduced a bill that would rein in reliance on digital monitoring. The bill would prohibit selling the results of universal scanning by requiring permission of those (all of us) who are tracked by police cars scanning and scan cameras installed in the street.

The issue is headed for civil court in California. A private corporation, Vigilant Solutions Inc., one of the nation’s largest privately owned scanners of street activity has sued the State of Utah when the State took steps to ban license plate scanning. Vigilant’s affiliate, Digital Recognition Network sells access to an accumulated two billion scans. Vigilant recently offered police agencies in Arizona free license plate scanners, anticipating they would own the right to sell the results of the scanning. Vigilant’s offer is contingent and requires a minimum of 25 million scans before providing free scanners to the police.

The friction point is between free speech rights and search and seizure. The debate focuses on whether a scan is a search and should be limited by the constitution’s requirement of reasonableness. By analogy, a parent has a duty to supervise and know where their child goes and does. The law imposes such a duty on persons in loco parentis relation to others, such as teachers with students and jailers with those in custody. There is no duty on the part of the government to monitor and observe lawful acts. Where there is no duty, there is no legal right to observe, monitor, record and then sell information of a person’s daily activities. The issue is topical in South Florida where traffic cameras and police cars observe and record traffic.

The History Channel‘s broadcast of “Weather Warfare” focused international interest in The State of the Nation’s demand that the International Criminal Court begin a criminal investigation into what I have dubbed “The ChemtrailGate Conspiracy.” The allegations are that ChemtrailGate conspirators are spraying sulfuric acid and aluminum compounds into the upper atmosphere in criminal violation of international treaties prohibiting such acts. Chemtrails differ from Contrails (Condensation Trails). Those involved in Chemtrail argue that there is commercial value in weather modification and that they have a right to pursue this as a business venture. Some Chemtrail partners are joined with and sharing costs with the U.S. Department of Defense. The government’s interest is exploring the use of weather modification in war. Another stated purpose of Chemtrail is to reduce global warming. David Keith, author of “A Case for Climate Engineering” appeared on the Colbert Report to explain how this geo-engineering theory will “help” reduce global warming. GeoEngineering Watch in support of the conspiracy charges posted an article on January 15, 2014, see: Chemtrails: Covert Crimes Against Humanity.

If the International Criminal Court moves on these charges, it would be a historic moment in the use of criminal laws to protect individuals from exposure to toxic chemicals by government contractors and corporations.

United States prosecutors have declined to file charges against the (alleged) ChemtrailGate conspirators.

The legal theory behind the allegations would create, if framed as such, a new area of criminal law: Aggravated Battery by Toxic Chemical. Experts in criminal law believe such a legal theory is valid. It would require a court of international jurisdiction, such as the International Criminal Court, to prosecute the alleged conspirators and name individuals exposed to the chemical agents as victims.

Here is a backgrounder on the law of criminal battery that would form the basis of such a prosecution: A battery is defined as an unlawful touching. Aggravated Battery elements require proof of serious bodily harm. An aggravator is defined as a weapon or device used to inflict the harm. The element of specific intent, defined as the fully formed conscious intent to cause the battery on the purported victim, can be met by the criminal concept of criminal negligence. Examples of criminal negligence are manslaughter and reckless endangerment. In any prosecution for Aggravated Battery by Toxic Chemical, the aggravator would be the toxic chemical used against individual victims. There currently exist provisions in federal and state criminal laws for prosecutions of individuals using poison to inflict harm on their victim.

If the allegations are substantiated and the legal theories supported by the International Criminal Court, it would require a referral from the United Nations. A referral is required for the Court to begin the indictment process against the individual and corporate actors reportedly associated with the ChemtrailGate Conspiracy.

The International Criminal Court in The Hague was created by the Rome Statute of The International Criminal Court of 1998. The International Criminal Court is not part of the United Nations World Court, but is a forum created by treaty among 120 founding nations. It is a permanent treaty-based international court established to prosecute individuals outside of their nation of origin. Because the United States is not a signor to the Rome Statute creating the ICC it is deemed unlikely that any prosecutions of U.S. based corporations or U.S. citizens will be undertaken. The International Criminal Court is not a part of the United Nations World Court. The World Court deals with international controversies of a commercial nature and was not created to investigate and prosecute crimes against humanity and genocide. The International Criminal Court has prosecuted charges that arose from events in Bosnia and against individuals involved in genocide in Africa in recent years. Investigations into the Chemtrail Conspiracy have been undertaken by Non-Governmental Organizations (NGO’s) and have not been supported by the United States Department of Justice.

Asset forfeiture is a civil process, not a criminal punishment. By that legal fiction, prosecutors can strip assets from anyone who is arrested. The arresting agency can seize property with the objective of taking title from its owner. The lead case on forfeiture statutes, Bennis v. Michigan, came from the United States Supreme Court in the early 1990’s. In that case, the government seized, and ultimately won title to an automobile owned by the wife of a man who used her car for a sporting event with a prostitute. Even though the wife did not know or approve of her husband using her car for a tryst with a prostitute, the car was sized and the forfeiture upheld.

Here is how it works in Fort Lauderdale (Broward County), throughout most of the other state courts, as well as in Federal criminal prosecutions. The arresting agency (for example the Fort Lauderdale Police Department) stops a car, searches the car, and arrests the driver for possession of cocaine. Because the car was the “fruit or instrumentality” of a crime a forfeiture action is filed in civil (not criminal) court. Even before the defendant’s criminal case is resolved, the car has been seized, now it is parked in a storage lot, storage fees accumulate, and civil lawyers for the City of Fort Lauderdale file a law suit naming the car as the respondent. The owner of the car, after posting an amount equal to the value of the car, and only AFTER posting the money, can respond to the lawsuit. Most everyone loses his or her property before the criminal matter has been resolved. It is a big money maker for local government as well as for law firms that take a piece of the action for themselves.

Now Minnesota has adopted a new law that changes their forfeiture process a bit. The Minnesota State Legislature took a look at this and the forfeiture programs in their state and made some changes, which were long overdue. Now, in Minnesota, the government can only take property IF there is a criminal conviction. The forfeiture law in Florida, and in most states, places the burden on the property owner to prove the property was not used in or the proceeds of a criminal act. The Minnesota law shifts the burden from the owner to the state. In most states, law enforcement agencies seize property from people and then negotiate a settlement for the property to be returned.

The wizened and savvy of the criminal world have for the past twenty years chosen to rent their homes, lease their cars, rent airplanes for flying in Marijuana. Leased property is not subject to seizure. Florida law has given banks and leasing companies a free pass to lease without risk of forfeiture. The only exception, and one that is never alleged, is that the lessor had actual knowledge that the property was to be used in a crime. In my experience from practicing criminal defense in Florida and New York, this has never occurred. The abuses associated with asset forfeiture have become a major feature of this area of law. The punitive aspect has been subsumed in the mire of horror stories and bad judgment of local governments. Forfeiture has become a legal cottage industry.
Law firms bid for the asset forfeiture work in their municipality; providing free legal representation in return for sharing the bounty of seizures. The Minnesota reforms make sense. Not only does the crime have to be first proven and a conviction obtained, before the property can be forfeited, but also the burden has shifted, requiring the government to prove the property was used in a criminal undertaking. In Florida, the owner must prove a negative: that the property was not used in the commission of a crime.

According to the United Nations Office on Drugs and Crime, the total amount of money laundered worldwide in one year is $2 trillion U.S. Dollars. That is 3% of the world’s GDP (Gross Domestic Product) in U.S. dollars. To put that in perspective: it is an amount equal to the the Russian Federation’s total GDP. Russia is the world’s ninth largest economy.

In the U.S., money laundering is defined in 18 U.S.C.A § 1956, the statute is titled: Laundering Monetary Instruments. To be convicted of money laundering in federal criminal court, the government must prove the following:

1. You knowingly conducted or attempted to conduct a financial transaction;
2. You knew that the money or property involved in the transaction were the proceeds of some kind of unlawful activity;
3. The money or property did come from an unlawful activity, and

4. You were involved in the financial transaction with the intent to promote the carrying on of that specified unlawful activity (including avoiding paying taxes or brining money into the U.S. without reporting it).

Source: 11th Circuit Pattern Jury Instruction 74.1
 – Money Laundering: Promoting Unlawful Activity 18 U.S.C. § 1956 (a)(1)(A)(i)

Locally this month, the U.S. Attorney in Miami indicted Eduardo Perez de Morales on a 238 million dollar money laundering charge. Many lawyers in South Florida believe the legal basis of the prosecution can be challenged, and if handled correctly the matter dismissed or better; won at trial. His brother, Jorge Perez de Morales, is wanted by the FBI and is reported to be living in Cuba. Local criminal defense lawyers believe him to be in the Dominican Republic. Their company, Caribbean Transfers, Inc., was a transfer agency for over 150,000 clients, where money from expatriates living in the United States sent money to family back home in several Caribbean and South American countries. Caribbean Transfers, Inc. closed in 2012. The indictment began as a Medicare Medicaid fraud indictment and blossomed into an international money laundering case.

Money laundering prosecutions and investigations often morph into international matters. The United Nations can, and does, refer related crimes to the World Criminal Court in The Hague. The World Criminal Court is increasing its prosecution of terrorist activities, crimes against humanity, etc. According to the United Nations Global Counter-Terrorism Strategy (adopted by the United Nations General Assembly in 2006), the Miami arrest is part of the following objective: To curb money laundering and the financing of terrorism by attacking the economic power wielded by criminal organizations in third world countries. Emerging economies are the primary targets of opportunity for money laundering and have been targeted by major money launderers: drug cartels, stolen government funds, etc.

Although money laundering goes on worldwide it is a growth industry in second world nations. The current “hot spot” for money laundering is Panama. Panama has a history of moving toward favoring money launderers. Recall the antics of Panama’s former President Noriega: He was kidnapped by United States military operatives and spirited by plane to stand trial. He was convicted in the United States, sentenced, and then shipped to France where he was convicted again. The reason is he had taken over several United States chartered banks in Panama City and made it known to drug cartels in South America that the newly nationalized banks would handle money laundering transactions at a discount. His life took a turn for prison when he did that. However, events of recently as 2014 have revived Panamanian banks’ willingness to enter into money laundering, again.

Abraham Lincoln suspended habeas corpus during the United States Civil War. Japanese Americans were interred during World War II. There are always good reasons to side step the 4th Amendment when we perceive real threats to our way of life. This topic is again in U.S. Federal Courts and it has to do with a confrontation between the Solicitor General, Mr. Verrilli, and Senator Udall of Colorado and Senator Wyden of Oregon. They wrote to ask that the government correct its monitoring actions to comfort with the Patriot Act and U.S. criminal laws. In the Senators’ letters they complained that the Justice Department was intercepting Americans’ international emails and phone calls, domestically intercepting that is, and doing it without notice. Notice is required by law, but ignored.

The United States Supreme Court suggested that the real threat to our way of life is not from our enemies but from our elected public officials and there’s something to that. The issue arises today when the NSA gets hauled into Court for listening to conversations of Americans; ostensibly to look for terrorist plots arising from within.

The Supremes reflected that perhaps there are other effective ways to save our way of life from terrorists. We agree, do you?

The constitutional guarantees freedom from unreasonable searches and seizures. Searches, not supported by affidavit, are prohibited. The Obama administration argues that national security needs should trump the fourth amendment. It all came together before United States Supreme Court and the resolution is neither satisfactory nor clarifying.

Judges routinely sign warrants for searches of people’s homes, papers, and surveillance on their communications. In criminal courts a motion to suppress is the legal remedy for an unlawful search or seizure. The analysis uses the totality of the circumstances test. In the evidentiary hearing, the burden is on the government to prove by a preponderance of the evidence that the search and seizure was reasonable. What the security agencies wish to substitute is the finding of a judge whose deliberations are secret and sources protected. When the National Security Administration listens in on communications, it can do so without a warrant and without judicial review: that was litigated before the United States Supreme Court in the Clapper case. There are more cases coming but the issue remains as current as today’s headlines.

On one side of the issue is the American Civil Liberties Union, when they wrote (when addressing the letters from Senators Udall and Wyden): “What these letters highlight is the extent to which the government was able to take advantage of the fact that the Supreme Court, as much as the American public, was operating in the dark about the scope of the statute and the way the government was using it.” And, on the other side was the Justice Department, which argued that its activity of scanning international calls and emails originating within the territory of the United States (and saving them) was classified information and not subject to court review.