The Methods Used in the Zazi Investigation

I’ve been focusing on how Section 215 of the PATRIOT Act may have been used to investigate Najibullah Zazi, but Dina Temple-Raston had a great story yesterday cataloging the range of techniques (though she doesn’t name Section 215 specifically).

Intelligence Tip

I’ve seen a number of vague suggestions for when investigators first focused on Zazi. While she doesn’t describe it as the first thing that made investigators focus on Zazi, Temple-Raston does reveal that Pakistani intelligence gave the US information about Zazi’s actions in Pakistan.

Sources say officials acted after Pakistani intelligence allegedly told them that Zazi had met with al-Qaida operatives there.

From the context, it appears the US may have gotten this tip shortly after Zazi returned to the US in January.

FISA Roving Wiretap

From there, it appears the FBI applied for an got a roving FISA wiretap. Temple-Raston provides a detailed explanation of what a FISA wiretap is, noting that it can be used for emails as well (remember that investigators had identified three email addresses Zazi used).

In his case, officials tell NPR they asked a judge for what’s called a roving FISA wire tap. 


Law enforcement officials close to the Zazi case tell NPR that the FBI applied to a special court for the wiretap months ago.

And note, since they already had intelligence from the Pakistanis, it would presumably have been easy to justify a traditional FISA warrant–not to mention establish reasonable cause for any of the other FISA or PATRIOT Act tools in question.

Physical surveillance

After they got contacts from Zazi about developing bombs (perhaps in July or August?), it appears they started tracking Zazi more closely. The FBI followed Zazi all the way from Denver to NY–and staged a drug stop on the George Washington Bridge.

FBI agents followed him on the 27-hour drive. And, just to make sure they tracked Zazi closely, they asked local law enforcement for help along the way. Zazi was pulled over several times for speeding. He apparently got a ticket in Kentucky. And the FBI knew about it.

When Zazi neared New York City on Sept. 10, the New York police pulled him over on the George Washington Bridge. Officials familiar with the case tell NPR that was an orchestrated operation between the FBI and NYPD. They wanted to make sure there weren’t any chemicals or a bomb in Zazi’s car. They told Zazi it was a routine search and, just to underscore the point, pulled over other cars on the bridge as well.

Sneak and Peek

The following day, the FBI conducted a sneak and peek search of Zazi’s car and laptop (this is the search when they found the bomb-making instructions on his computer).

Authorities got a better look at Zazi’s car a day later, using a special provision of the Patriot Act known as a "sneak and peek." They broke into the car and swabbed it for chemicals. They found Zazi’s laptop in the car and mirrored the hard drive.

Section 215?

And finally, there is information that was either collected using Section 215 before Zazi knew he was under suspicion, or using regular warrants afterwards: the details on Zazi’s purchases of acetone and hydrogen peroxide.

They have surveillance video from a Denver-area beauty supply store, which they claim shows Zazi pushing a shopping cart full of bomb-making ingredients — such as hydrogen peroxide and acetone — up and down the store aisles.

Note, they also have receipts from this shopping trip.

One thing Temple-Raston doesn’t mention, but we know from other reporting, is that the FBI also showed Ahmad Wais Afzali–the imam at a Queens mosque Zazi had attended while still living in NY–a picture of Zazi. Afzali had given law enforcement officers information in the past, but in this case, the government accuses him of lying about having warned Zazi that investigators were asking about him and tapping his calls. 

A number of Temple-Raston’s sources make the point that this was a remarkably good use of all the tools available for terrorism investigations. And I agree–what we know of the investigation shows how law enforcement can combat alleged terrorism. If the alleged facts are true, then this is a hugely important success.

Meanwhile, note how even the known elements of this investigation serves as a backdrop for the discussions around PATRIOT renewal:  roving wiretaps, sneak and peek, and Section 215 have all been discussed in the last two weeks. 

But as I pointed out, it appears that the authorities had evidence (a tip from Pakistan) tying Zazi directly to al Qaeda before they started using all these tools. DiFi says requiring investigators to show similar ties to al Qaeda (or even to Zazi himself) would end this investigation. But at least from what Temple-Raston’s article shows, this investigation started with that kind of tie to terrorism.

47 replies
  1. alinaustex says:

    Thank you Marcy for another helpful post. Perhaps this is one way the Obama Administration is changing the mentality of the corrupt and ineffective tactics /strategies the bushies had in the fight against al Qaida . The terrorist networks are bested by good ol ‘ law enforcement . We can begin to walk in the sunlight as we extract ourselves from the gwot/Long War / darkside ditch the gwb43 asshats mired us .

    • PJEvans says:

      We can begin to walk in the sunlight as we extract ourselves from the gwot/Long War / darkside ditch the gwb43 asshats mired us.

      If the [email protected]#$%^&*(s in Congress don’t shove us all back in, with their gullibility and their tendency to make laws before they have enough information to know what the fixable problems really are.

  2. Loo Hoo. says:

    I’m glad that the Pakistanis are doing good things, what with the billions we’ve been giving them. You’d think all those traffic stops would have given Zazi a clue, though. It will be interesting to see how it works out for the Imam.

    • emptywheel says:

      NYT did a long profile of Zazi. One of the guys who went to high school with him said, “well, he’s basically stupid.” Or something like that.

      • Nell says:

        One of the guys who went to high school with him said, “well, he’s basically stupid.”

        I’d moved a good part of the way toward that conclusion when I got to the part where he left his computer in his car…

          • Sparkatus says:

            Left laptop in car…(period). I’ve endured my fair share of smash and grabs…but never in my hometown of NYC and never a laptop, that is truly idiotic.

            Yes, I was stupid enough to have it happen more than once. No more. As a great mind once said, “Fool me once, shame on you. Fool me twice………can’t get fooled again.”

      • LabDancer says:

        Can I ask for source for your quote, or gist-quote: “well, he’s basically stupid”.

        I’ve googled that phrase & the key words in various ways, & all that comes up is:

        this post at the top of every page,

        & ba-jillions to ka-jillions of disses, slanders & slurs railing against Zazi & then muslims & thereafter in no particular order: the NYPD, the FBI, Zazi’s lawyers, US law enforcement, liberals, other commenters in the same thread [the last being fairly close in frequency to muslims — which IMO sort of takes the edge of the racial slur & thus is kind of comforting].

        Moreover, I’ve stumbled across a lot of posts & threads predicated on the diametrical opposite; for example, this from Jeralyn at TalkLeft — who I haven’t read since before the election, but who raises stuff that’s been bothering me from Zazi’s choice of legal representation & how his ‘defense’ is being conducted by them [or more accurately, him & them], plus some other stuff that IMO strays way too far from the edge of occam’s razor:

        [Parenthetically … all those searches replaced yours above, or that plus “215″, in my mind as the most memorable phrases, with these two, from the young man Khan who let Zazi crash amid Khan’s dad’s hoard of “bookbags” [a descriptor I found both apt for the younger generations & elusive to those of middle-to-later age]:

        “I barely knew [Zazi]. How was I to know what was in his mind?”

        [particularly apt given the only charge Zazi faces so far is conspiracy]; &

        “Your life can change without warning…and you are helpless”

        [tho I still prefer Paul Simon’s version:

        • emptywheel says:

          Sorry–it was “dumb kid:”

          Najib was not a strong student, and he dropped out before graduating, friends said. Mr. Rasooli, the elder Mr. Zazi’s step-uncle, said it bluntly: “He was a dumb kid, believe me,” but one who was dedicated to making money and helping his father.

          • Mary says:

            I thought it was weird that the guy who did that piece had another piece up in a day or two that was a puff profile on Alisyn Camerota of Fox Friends.

            Odd choice to do a crime/terrorism piece I thought.

            You know, there’s nothing to rule out (or in, this is a WAG) the fact that the Pakistani “tip” was basically planted. Illegal searching here, done without warrants or authorizations, find something, get Pakistani intel to paper up a reason for you to get a FISA warrant (drational @29 – I think it would absolutely have been enough for a FISA warrant, which really mostly just needs “probable cause” that someone has been “in contact” with an agent of a foreign power – – a standard that might not be constitutional now that it is ALSO being used where a criminal investigation is the primary purpose of the FISA warrant and there was no criminal probable cause – but now there’s going to be a trial.)

            So – if someone were to really dig in an track on the Pakistani tip and find that it was planted, or perhaps that it was the result of torture statements or something similar, then you unravel the grounds for the Zazi targeting – and if you unravel that, then the fruits of that are at issue. All fwiw, which isn’t much- just some idle spec on one of a 1001 possiblities.

            • LabDancer says:

              “1001 possibilities”

              Right. Way too little out there to draw any meaningful conclusions.

              To add to the uncertainty, I’m struck by how circumspect the language is, that’s used in the feds’ detention brief, pertaining to the e-mail messages & downloaded content on the laptop said to be that of Kid Zazi [which was in his possession sure, but may not be ‘his’ in the sense of ownership or control of its content being limited to him.]. The 3 e-mail accounts apparently were set up while he was in Pakistan & are described as being “associated with” him – which is short of saying they are “his”; why be so cautious, especially given the supposed ‘closeness’ in the respective passwords? Plus the mirror of the hard drive shouldn’t awe anyone who’s run into instances of the DEA & other agencies fooling around with suspects’ hard drive content since mirroring became do-able. Note the choice of words like “transferred” & “accessible”: As we know, the first simply means someone moved the file, including potentially just by opening an attachment to an e-mail message that had not previously been ‘accessed’; a lot of e-mail programs go right to the default of “do you want this saved & where”, & hitting that twice can achieve it being saved without even being read; thus the resort to “accessible”.

              Check that “1001″ number; 100,001.

          • LabDancer says:

            In every city of any consequence in the US, and probably anywhere else with some form of public adjudication system, there is at least one practicing defending attorney, & often an entire school of ‘em, who specializes in the minor situational art [& volume business] in standardized decriminalizing pleas-&-sentencings, represented IMO very well in the oft-uttered phrase:

            Judge – the miserable frightened creature appropriately cowering before yer awesomeness in th’ detainee bullpen right now, who I have th’ distinct honor an’ privilege to be th’ attorney of record of, is no kingpin of krime, nor a crazy psycho animal society has to lock up until all th’ nation’s stocks of fertilizer are accounted for or th’ public tumult subsides to a level that allows for his return to society or at least th’ Eagles in a backup role; nor some Doctor Evil, or Mini Me, not even Scott Evil; but rather is very likely both extremely unlucky, an’ in any event beyond a shadow of a doubt th’ single stoopidest client I have had th’ misfortune, but of course also the great honor, to represent, in my many years before th’ courts. It would do an injustice in th’ extreme, such that those involved in its machinations risk eternal perdition, if th’ sentence yer honor is about to impose fails to reflect adequately on th’ pivotal role that being a moran moron has played in my client’s standing where he is today.

        • LabDancer says:

          The particular lines I think are apt:

          “Somebody could walk into this room an’ say
          Your life is on fire:
          It’s all
          Over the evening news;
          All about the fire in your life
          On the evening news.”

          I risk feeling like Barabbas if I don’t address the main point [at least what I think is the main point] of fearless leader’s several posts recently dealing with the intersection of Congressional hearings on renewal of items in the toolbox of the security state and the Zazi case.

          Going to what’s by now probably a small point: that of the possible source[s] for the difference in the point of view among 3 of the unarguably most-liberal on the SJC, Leahy, Feingold & Whitehouse — plus I’ll throw in a reference to the new face, because he surely sits among them, & Lady DiFi, because she helps make the point: Leahy, Whitehouse & DiFi at one or more points were all prosecutors- DiFi the least & most briefly [tho one hesitates to suggest with any less passionately – & if so, one can point her being in the front row of the Milk/Moscone murders to make up for any ‘deficiencies’ in these]; Leahy elected 4 times effectively a DA, so the boss of a prosecution office for a significant period; & Whitehouse a career guy until being elected to the Senate, including high up in the RI state office & as Clinton’s US attorney for that urbanized pothole from hell state. Whereas Feingold was never a prosecutor [and so ‘closer’ to Franken, who’s never even not a lawyer, & thus, as we wee wheelies know, the more blessed & beloved.

          The distinctive line can matter on several levels. One who has been a professional prosecutor for any significant period of time is endemically susceptible to at least fancy she or he has a bond with the line troops of law enforcement, including the ability to discern b.s. [accurately or not, as to either or both self-delusion]. Going a bit deeper on both those fronts, some might be surprised at how routinely attorneys on the defending side slip in to law enforcement types their prior routes on the prosecution side; the change of attitude on side of the leos is palpable: the impression left is that the one might expect from practical application of the r.o.t. that one can’t bullshit a bullshitter.

          I’m not suggesting that Feingold is thus disadvantaged by professional narrowness into naivete; there’s also the work of the termites of hubris to account for in this assessment. What I am suggesting is that the influences are even more institutional, and that it would actually far easier for say Whitehouse to get a deeper more “meaningful” look into the bona fides of an investigation that for say Feingold — & far more likely that, owing to subjective experience, Whitehouse would trust individuals & their particular assessments IN THIS AREA, than would Feingold.

          I don’t propose this does anything at all to resolve the who’s point of view is more credible; but it does explain the distinction.

          • Mary says:

            One other thing to keep in mind is how much each of them are in their political, vs legal, boxes.

            Right now Obama has been screwing up left and right (literally, metaphorically and politically). The SNL skit is becoming conventional wisdom and he’s getting so little respect from so many fronts that you also have the issues of who is, and is not, willing to create more political firestorms for him.

            I hate to say it, but I can see Leahy being very vested in Obama and in trying to keep him from having issues exposed showing that his (Obama’s) FBI engaged in some activities that were just as egregious as during the Bushco years. Whitehouse has come from an election and a state that was fairly happy with Lincoln Chaffee and as Obama tanks, so might a Democrat if there were a Chaffee in the wings for re-election consideration. Although I have a really hard time thinking of the Republicans having someone like a Chaffee back in the fold; still, he did give them almost all the votes they wanted and needed.

            So I do think, esp if you had an FBI doing things on Obama’s watch that are going to be legally questionable, some of the “liberals” like Whitehouse and Leahy might be very interested in engaging in throwing out lots of lifelines. And that is a super discouraging thought. But one I think has to be included on the 100,001 list.

  3. bmaz says:

    They told Zazi it was a routine search and, just to underscore the point, pulled over other cars on the bridge as well.

    Lovely. Very curious to know whether they found anything incriminating in these tangential pretext intrusive stop and searches, and whether charges were filed therefrom (count on it if they found anything).

    And the last two sentences of the post are key to the discussion.

    • joanneleon says:

      Dumb question: Is it part of these expanded powers to be able to pull other cars over just because they were in the vicinity of Zazi’s car?

    • emptywheel says:

      Yeah, I thought you’d like that trick.

      On the one hand, if they really thought he had these bombs in the car, I’d have preferred them to pull him over before he got ONTO the GWB. But I was waiting to hear what you thought of the legality of that.

      As well as the ethics of the speeding stops. I’m guessing they let a bunch of other speeding cars go by just before they stopped Zazi.

      • bmaz says:

        I am not even sure about the legality if they had found something on Zazi, much less others unknowingly swept up in the gig. Do the fancy dan FISA warrants allow for a regular police stop and search? What if Zazi said “hell no you can’t search my car; get the fuck out of here with that nonsense”? What is their legal basis for the search? I simply do not see probable cause for a regular police stop and search and heard no mention of a warrant authorizing that. Maybe I missed something here though; I will give them credit for being on top of the dude as they were.

        • mocha says:

          Cops seem to be able to get away with that anymore. Stop you for a traffic violation, one partner takes you back to the patrol car, next thing you know dude’s partner has got the trunk lid popped ‘just to have a look.’ Anymore, I’d be afraid if I said ‘heh, you can’t just search my car without cause’ you might get tazed. It’s wrong, but that’s how it is.

      • scribe says:

        They pulled him over by the toll plaza on the Jersey side of the bridge, and not on the bridge proper. No one gets pulled over on the bridge proper for all sorts of good reasons.

        Also, the local cops made a big show of getting the “random drug stops on the GWB” story out in the local media prior to the whole thing about terrism breaking into the open, i.e., while Zazi was still in the NYC area (and, presumably, would have heard or been expoesed to, local news reports).

        One point – I recall the initial reporting being that it was the NYPD which went to the imam with a picture of Zazi, and that the imam’s alleged call to Zazi was to tell him that the NYPD was asking after him. Also, a senior NYPD guy has, apparently, lost his job over the bigfooting which blew the cover of this operation.

        • emptywheel says:

          Yeah, I do believe it was NYPD who went to the imam. Though JTTF had gone to him in the past.

          And thanks for the details on the stop–that’s sort of what I had figured. No sense letting him ON the bridge if the concern is bombs. And you can’t really stop anyone on a bridge.

          • scribe says:

            When I said “All sorts of good reasons”, letting a guy thought to maybe have explosives in the car onto the bridge is one of the lesser ones, even in this case. What was thinking of was this one, from an opinion written by now-Fox News legal commentator Andrew Napolitano, then a New Jersey Superior Court judge, in State v. Barcia, 228 N.J. Super. 267, 280-81 (L.Div. 1988), aff’d 235 N.J. Super. 311 (App. Div. 1989). Barcia was a motion to suppress some minimal quantity of dope found in a car at a checkpoint set up on Jersey side of the George Washington Bridge. The Bergen County prosecutor and cops had decided that they needed, in the height of the 80s crack epidemic and panic, to interdict people coming with their crack into leafy Bergen County from Washington Heights in Upper Manhattan. So, they set up a bunch of roadblocks on the Jersey side, patterned after DWI checkpoints. They were pulling out about 1 of every 20 vehicles or so, and looking to see if there was any sort of problem. From the opinion (emphasis in original):

            On September 12, 1986, between 7:30 pm and midnight, as a result of the roadblock here under scrutiny, traffic came to a complete halt from Fort Lee, New Jersey, over the George Washington Bridge, down the West Side Highway in Manhattan to West 56th Street; from Fort Lee, New Jersey, across the George Washington Bridge, up Route 95 to Riverdale in the Bronx; and from Fort Lee, New Jersey across the George Washington Bridge, over the top of Manhattan, down the FDR Drive, and across the Triboro Bridge in Queens. Captain Robert Herb of the Bergen County Police Department …, who was the highest ranking uniformed officer supervising the roadblock, testified that as a result of the roadblock here under scrutiny over one million motor vehicles came to a complete stop, in some cases for in excess of four hours, and that it was not until some hours after the roadblock in Fort Lee itself was dismantled that this traffic morass of monumental proporition unwound itself. Out of this serious impeditmment to the freedom to travel to over one million persons at one of the most heavily traveled thoroughfares in the country came fifty-nine motor vehicles which were ordered to the side of the road and searched, and from those fifty-nine vehicles there came nine arrests.

            There were similar traffic jams, only more widespread, on and after 9/11, when cops decided they had to shut down or choke down traffic on the Manhattan crossing points.

    • stryder says:

      How’d you like to be the poor bastard on a clandestine rendezvous with his mistress(pseudo bonfires of the vanities ordeal).
      Hey! “We got someone with a gallon of acetone,let’s shut the bridge down and see what else we can find”
      “Don’t forget the ticking time bomb angle”
      “Just say he looked suspicious”
      “We don’t need no stinking probable cause anymore”

  4. joanneleon says:

    So is DiFi concerned about the ability to look at the network of people connected to Zazi via telecom/electronic communication records? If they suspect he’s part of a cell, that would make sense.

    • Jim White says:

      I read what Marcy says above that once they have reason to suspect him (like a tipoff from Pakistan), traditional FISA handles that very well.

    • emptywheel says:

      My specific obsession–with Section 215–is that she’s worried they won’t be able to find other people who are making similar bombs unless they back into it from precursor purchases.

      They’ve got all the communications access they want and even Feingold’s attempts to end the data mining aspect of FISA wouldn’t stop that.

  5. mocha says:

    EW, if they had information that tied him to Al Qaeda, then why would DiFi think requiring investigators to first establish a tie would end this investigation…Are you sure she’s talking about Zazi? Maybe there’s “another” investigation going on that she knows about where they don’t have the tie to Al Qaeda, someone swept up in the net with Zazi’s wire taps?

    • emptywheel says:

      It’s an ongoing investigation. They haven’t rounded up his accomplices and still have’t figured out (or revealed) where the explosives he was working on ended up.

  6. bmaz says:

    From CNN

    Several people who traveled from New York to Pakistan last year with a man accused of plotting a terrorist attack have since returned to the United States, sources close to the investigation told CNN.

    A grand jury has been in session in New York in the last week as further charges are considered in the expanding terror investigation, CNN learned

  7. Hmmm says:

    Well, on the one hand I feel better about the origins of the investigation not running afoul of the Fourth Amendment. And it shows Pakistan-US cooperation in a better light than I might have expected. And all that is well and good.

    On the other hand, this seems to shoot ten kinds of holes in DiFi’s attempt to run this case up the pole as an ad for the 215 and other powers, insofar as (a) that’s not what found Zazi, and (b) as Z’s atty has pointed out, if this is conspiracy then where are the co-conspirator indictments that the TIA stuff would have had to catch to bear out DiFi’s purported success story?

    Also a side question: How exactly does the fact of the existence of an intelligence investigation on the FISA side — or any inadmissible evidence or info collected in pursuit of same — transmogrify into probable cause and admissible evidence on the crim side for either Zazi or those connected to or known to him?

    • bmaz says:

      As long as their FISA obtained info was legally obtained, you simply have to present it to a court of proper jurisdiction. The probable cause part is not that hard because it would be done with no, or extremely limited, involvement of Zazi or lawyers for him (warrants and GJ presentations would not require his participation.

      • Hmmm says:

        Thanks. So it would be different and harder to resolve a subject via crim charging if that subject had been initially identified solely via some TIA operation beyond the boundaries of 215, yes? B/c the evidence would in that case have been obtained illegally?

  8. Hmmm says:

    BTW has anybody by any chance happened to graph/plot the dates and numbers of terror investigation announcements vs. the periods when legislation changes were being debated? It feels correlated, but then again since there is a strong tendency to imagine connections it would be well to go facty about that.

      • scribe says:

        It was charted when Tom Ridge’s book – stating that, yes, alert levels had been coordinated to political needs – came out recently.

        Of course, when Ridge folded to the strong arm of the Rethug party, everyone stopped noticing the charting.

        • prostratedragon says:

          Olberman traced a pretty good circumstantial case along those lines, too, probably back in around 2006.

          Re the GWBr story @31, I might give a rare pass for the 9/11 lockup, simply because of the difficulty in hanging on to calm thought the day imposed, but as for the earlier drug stop hijinks, which are worthy of an oral recitation for maximum impact, that just goes to show the leverage afforded to small minds by access to the chokepoints of complex systems. Someone should write a satire.

  9. bobschacht says:

    On a related subject:

    Supreme Court to Review CCR Case on Statute Criminalizing Humanitarian Aid
    CCR Calls Provisions of Material Support Statute Unconstitutional

    Contact: [email protected]…..tarian-aid

    September 30, 2009, New York, NY – Today, the Supreme Court announced that it will hear an appeal from lower court rulings stating that key provisions of the federal “material support” statute are unconstitutional. The statute makes it a crime to provide money or goods, “training,” “personnel,” “expert advice or assistance” or “services” to any organization on the State Department’s list of “foreign terrorist organizations,” resulting in convictions carrying maximum sentences ranging from 15 years to life….

    Bob in AZ

  10. alinaustex says:

    bmaz @ 11 ,
    What should have been done by law enforcement to deal with the potential threat coming from Zazi’s vehicle ? Where would you draw the line on search of his car – was the stop on the bridge in your mind – an illegal search and seizure ?

  11. al75 says:

    Local coverage in the NYC area described tension between the FBI and NYPD – there are two rival units in the NYPD (intelligence and counter-terrorism) of which one (intelligence) was reported to have jumped the gun with the GW Bridge search. The head of the intel unit was reportedly forcibly reassigned as the NYPD denied any problems.

    At the time, the error was reported as a significant missed opportunity to let the case develop further and engage Zazi’s supposed conspirators.

    Interestingly, this is not present in the NPR account. Maybe the initial reporting was all wrong – or maybe a cadre of authorized leakers are putting out a sanitized story.

    Obviously an incompetent, overzealous police investigation has significant civil rights as well as public safety implications.

  12. drational says:

    “DiFi says requiring investigators to show similar ties to al Qaeda (or even to Zazi himself) would end this investigation.”

    Is a tip from Pakistani Intelligence sufficient for initiating a FISA warrant? In other words, is a vague or even solid lead from a foreign country enough for probable cause? Could this be a reason for DiFi’s hullabaloo- maybe the affadavit for a FISA warrant requires our own intelligence service to supply the data. Just a thought….

    • emptywheel says:

      I’m pretty sure the rubber stamp FISC would approve a warrant for someone who had been meeting with AQ in Pakistan.

      But that’s a moot question anyway. We’re talking about 215 (everyone but Feingold seems to have given up on fixing FISA), which even under Leahy’s bill would only require a contact with an agent of a foreign power.

  13. benmasel says:

    The Supreme Court looked at, and rejected, drug checkpoints in CITY OF INDIANAPOLIS et al. v. EDMOND et al. Decided November 28, 2000

    The checkpoint program is also not justified by the severe and intractable nature of the drug problem. The gravity of the threat alone cannot be dispositive of questions concerning what means law enforcement may employ to pursue a given purpose. Rather, in determining whether individualized suspicion is required, the Court must consider the nature of the interests threatened and their connection to the particular law enforcement practices at issue.

    • bmaz says:

      That is correct, although the same is allowed for DUI checkpoints under Michigan v. Sitz (a case I profoundly disagree with); the difference being the level of intrusion of the drug search being too great to tolerate. I don’t like either form of activity. Irrespective of the above however, it really does not apply to the Zazi situation because that was not a randomly designed program that was designed and operated within an acceptable framework, even if one were allowed under Edmond. That is exactly why I was saying above that, without more, it would appear that this was an unconstitutional search unless it had a duly executed warrant backing it up, which there is no evidence of at this point. Under the facts as seen so far, it appears to have been an illegal ruse and pretext both as to Zazi and the other motorists caught up in it.

      • scribe says:

        And, FWIW, the Barcia case was a 1988-1989 series of decisions, predating the S.Ct. by a decade or more.

        There’s little doubt in my mind that stopping him before he got to the bridge was purely pretextual, and that the other people were stopped to give cover to that pretext.

        • bmaz says:

          You just know they found something illegal afoot with at least one of the others and went ahead and charged them though, don’t you think? Cops just couldn’t stop themselves…..

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