FBI director Robert Mueller (photo: Medill DC)

(update below)

The Supreme Court handed down a victory for civil liberties in January when it ruled police could not attach GPS devices to a suspect’s car for tracking without a search warrant. Now, FBI director Robert Mueller is troubled and he wants everyone to know the Court’s decision to uphold privacy presents a distinct problem.

Mueller’s concern appears to stem from the fact that FBI agents may have to actually do work now that they cannot simply slap on GPS tracking devices on suspect’s vehicles and watch them move about parts of the country. He told a House Appropriations Committee, according to the Washington Post, that “putting a physical surveillance team out with six, eight, twelve persons is tremendously time intensive” and it “will inhibit our ability to use this in a number of surveillances where it has been tremendously beneficial.”

Essentially, he is upset the Supreme Court is going to make FBI agents do work. Isn’t it part of the craft to be able to catch suspects?

The FBI chief also told the Committee:

We have a number of people in the United States who we could not indict, there’s not probable cause to indict them or to arrest them who present a threat of terrorism, articulated maybe up on the Internet, may have purchased a gun, but taken no particular steps to take a terrorist act…And we are stuck in the position of surveilling that person for a substantial period of time.

Only in a country where lawless activity has become more and more predominant and acceptable is this actually a real problem.

Only in a country with influential officials of the law, who claim it is permissible to torture terror suspects for information, indefinitely detain people at prisons like Guantanamo, hold US citizens suspected of terror indefinitely if necessary and execute US citizens abroad without charge or trial is this a legitimate issue.

If the gun is purchased legally and the person says something that can be construed as sympathetic to terrorism, the person has not committed terrorism. He or she should not be tracked as a terrorist unless there is evidence to warrant monitoring that person more closely (hence why a warrant should always be required).

Perhaps, Mueller’s problem also stems from his understanding of the issue of GPS tracking.

The Justice Department argued in support of warrantless GPS tracking asserting “a person traveling on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.” But, despite legal precedent that might support that argument, no person driving his or her vehicle expects to be monitored by law enforcement on a daily basis just because he or she is out in public.

From the transcript of the oral arguments made before the Supreme Court last year, this is what the government lawyers tried to argue when Supreme Court Chief Justice John Roberts asked if the FBI could put tracking devices on the Justices of the Court whenever they wanted:

CHIEF JUSTICE ROBERTS: You think there would also not be a search if you put a GPS device on all of our cars, monitored our movements for a month? You think you’re entitled to do that under your theory?

MR. DREEBEN [government's lawyer]: The Justices of this Court?

CHIEF JUSTICE ROBERTS: Yes.

(Laughter.)

MR. DREEBEN: Under our theory and under this Court’s cases, the Justices of this Court when driving on public roadways have no greater expectation of -­

CHIEF JUSTICE ROBERTS: So, your answer is yes, you could tomorrow decide that you put a GPS device on every one of our cars, follow us for a month; no problem under the Constitution?

MR. DREEBEN: Well, equally, Mr. Chief Justice, if the FBI wanted to, it could put a team of surveillance agents around the clock on any individual and follow that individual’s movements as they went around on the public streets, and they would thereby gather …

…JUSTICE GINSBURG: There was a third party involved in the telephone — in the pen register case. And, here, it’s the police. Essentially, I think you answered the question that the government’s position would mean that any of us could be monitored whenever we leave our homes. So, the only thing secure is the home. Is — I mean, this is — that is the end point of your argument, that an electronic device, as long as it’s not used inside the house, is okay.

MR. DREEBEN: Well, we’re talking here about monitoring somebody’s movements in public. We’re not talking about monitoring their conversations, their telephone calls, the interior of their cars, their private letters or packages. So, there are enclaves of Fourth Amendment protection that this Court has recognized.

JUSTICE BREYER: What — but what is the question that I think people are driving at, at least as I understand it and certainly share the concern, is that if you win this case, then there is nothing to prevent the police or the government from monitoring 24 hours a day the public movement of every citizen of the United States. And — and the difference between the monitoring and what happened in the past is memories are fallible; computers aren’t. And no one, or at least very rarely, sends human beings to follow people 24 hours a day. That occasionally happens. But with the machines, you can. So, if you win, you suddenly produce what sounds like 1984 from their brief. I understand they have an interest in perhaps dramatizing that, but — but maybe overly. But it still sounds like it. And so, what protection is there, if any, once we accept your view of the case, from this slight futuristic scenario that’s just been painted and is done more so in their briefs? [emphasis added]

Post-9/11 attacks, law enforcement has taken advantage of the increasingly dystopian attitude toward security that is dominant in the United States. It is not surprising that Mueller would be upset at the convenience the Supreme Court will no longer grant the FBI. But, the FBI probably rarely has a difficult time obtaining a warrant so Mueller’s issue is insubstantial.

The process of obtaining warrants is what helps preserve liberty in the United States. Not respecting the process or suggesting it is too cumbersome is nothing less than a clear demonstration of disrespect for liberty.

Update

Georgetown University law professor Jonathan Turley, someone with a sharp legal mind, offers an analysis on another answer Mueller gave to a question yesterday. Given Attorney General Eric Holder’s recent speech on the US government having the “legal authority” to execute US citizens abroad, he was asked whether he had the authority to order the assassination of a US citizen here in the United States.

According to Turley:

Mueller said that he was simply unsure where the President’s authority would end, if at all, in killing citizens: “I have to go back. Uh, I’m not certain whether that was addressed or not” and added I’m going to defer that to others in the Department of Justice.” He appeared unclear whether he had the power under the Obama Kill Doctrine or, in the very least, was unwilling to discuss that power. For civil libertarians, the answer should be easy: “Of course, I do not have that power under the Constitution.”

Turley summed up the answer, explaining why it was understandable and dangerous:

What is the limiting principle? If the President cannot order the killing of a citizen in the United States, Holder can simply say so (and inform the FBI Director who would likely be involved in such a killing). In doing so, he can then explain the source of that limitation and why it does not apply with citizens in places like London. What we have is a purely internal review that balances the practicality of arrest and the urgency of the matter in the view of the President. Since the panel is the extension of his authority, he can presumably disregard their recommendations or order a killing without their approval. Since the Administration has emphasized that the “battlefield” in this “war on terror” is not limited to a particular country, the assumption is that the President’s authority is commensurate with that threat or limitless theater of operation. Indeed, the Justice Department has repeatedly stated that the war is being fought in the United States as well as other nations.