Ignoring The Plain Constitutional Language: F.B. I. – A Few Bad Ideas – (5)

A Letter From A Mother To Her Child At Camp Is Constitutionally Protected From Government Eyes
A Letter From A Mother To Her Child At Camp Is Constitutionally Protected From Government Eyes

When I read FBI Boston SAC Richard DesLauriers statement that the FBI was doing everything “in accordance with U.S. constitutional restrictions” I knew that was just another FBI line that is often tossed out to the American public as a keeper of a junk yard throws a bone to his mad dog to keep him in line.

If there is one organization that has constantly ignored the Constitution it is the FBI. We shouldn’t be surprised about it because it has a witting partner in the Department of Justice (DOJ).  I read that the American Civil Liberties Union was concerned that the FBI was reading the emails of Americans without getting a warrant. It wanted to know what the policy of the Obama administration on this. It filed a Freedom of Information request.

The criminal division of the DOJ responded to the request. Here is its response. It is a sign of what America is all about in this new age.

I’m not a big fan of the ACLU but in this instance I have to say they are trying to protect us. The issue isn’t whether the FBI can look at our emails if they have a good reason, probable cause, to do so; but it’s whether they can willy-nilly decide to look at anyone’s email just because it suits an agent’s whim.

The ACLU apparently wasn’t content with the non answer by the DOJ, it went on a search and found out that some of the US Attorneys offices have decided that the Constitution doesn’t apply to them.

Eric Holder heads the Department of Justice. When I met him while investigating some happenings in Colombia he was counsel for Chiquita Banana Company in a case where they were charged with supporting a group on the US terrorist list. He managed to have the company settle the case with a fine of 25 million. After the imposition of the fine, reporters waited outside to interview the lawyers on the case. Holder was seen ducking behind one of the courthouse columns.

He’s been in charge of the Justice Department, which includes the FBI, for over four years. I don’t understand how he keeps his job because apparently he doesn’t read too well, or if he does, fails to understand plain English.

I say that because he seems to get all confused over the following few lines that I  set out here:  The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

In my profession as a prosecutor it seemed to me the language was quite clear. I knew I couldn’t find myself wondering what someone was up to and then give myself permission to examine her papers. If I wanted to look at someone’s papers or effects in her house or office I knew I needed to establish probable cause and then go before a judge to do get her authorization. It was a simple, straight forward idea, established by the founders of our nation, that we, the people, have a right to keep the government agents from nosing around in our private papers.

I know during colonial times when those words were written they didn’t have email but they did have snail mail and what a person put in writing, sealed, and dropped in a postal box was considered as safe from government intrusion as if he left it in a safe in his home. That she relinquished custody of it to the Postal Authorities did not lessen its inviolability. It seems to me the same standard would apply to emails. It is not the government’s business to be reading my emails without the approval of a court.

I can’t figure out why Eric Holder can’t figure out that emails are as private as snail mail. The Constitution was pretty specific when it came to this saying our rights in our papers: “shall not be violated.” It’s not just me saying this, the Sixth Circuit of Appeals in 2010 said the same thing. 

And what did the FBI have to say about this?  As you expect“In all investigations, the FBI obtains evidence in accordance with the laws and Constitution of the United States, and consistent with Attorney General guidelines. Our field offices work closely with U.S. Attorney’s Office to adhere to the legal requirements of their particular districts as set forth in case law or court decisions/precedent.”

But we know that’s not true yet they keep repeating it.  It goes far beyond looking at our emails. The FBI is into something much bigger. I’ll tell you about that tomorrow.


  1. But now that I think about that, then the ACLU would have grounds to submit FOIA requests to the FCC as well as the FBI for the publications of all of the FBI’s and other agencies email communications on the grounds of “public airways exception”…goodness, Mr. Holder, might want to rethink his policy.

    Why is he still the Attorney General again? Has the Congress filed/ever considered/passed a “vote of no confidence” on anyone in a similar public office; or has there ever been a public censure or reprimand? Or, when it gets to this level, don’t most Presidents make the difficult decision? If Obama is not making the decision to remove him, why not?

    • Alex:
      Obama and Holder are personal friends. I know that because Holder told me that was the case.

  2. My guess is that the FBI is going to hang its hat on the argument that “email” falls under auspices of the FCC which, in turn, regulates “public airways” of information. Therefore, “email” is to be considered “public information and therefore no warrant is necessary.”

    But, of course, I could be mistaken.

    • Alex:
      The FBI can come up with a million reasons for accessing emails but they’ll all fly in the face of the Fourth Amendment. What do you do when your secret police don’t believe they are bound by the laws? What happens to society when the law enforcers are the law breakers?