Legal Commentary

No Attack, No Problem: Just Make One Up

By Jeralyn

President Obama called NYPD Commissioner Ray Kelly today to thank him for "thwarting the terror plot that targeted the city's subway system, police said."

Obama expressed his "appreciation and admiration" for the NYPD's effort in stopping the attack, sources said.

Except, there was no known plot to target the city's subway system. The Feds have consistently said they have no evidence Nabijullah Zazi was planning an imminent attack, and if he was, where it was to take place, what he was targeting or when.

"Nothing in the bulletins references the current investigation," a Federal Bureau of Investigation issued spokesman said Tuesday. Investigators still don't have specific evidence indicating an imminent threat to particular targets in the alleged plot, federal officials said.

They are speculating Zazi was planning something for Sept. 11, but don't know that. Big difference. No one has a clue what Zazi was up to with his chemicals. September 11 came and went with Zazi in New York and there was no attack. And, as to thanking the NYPD, had they not blown it by alerting the Iman who notified Zazi's father he was being watched, the feds might have a lot more information than they do now. [More....]

But, it's in President Obama's interest to make Zazi out to be a big terrorist. Why? Three key provisions of the Patriot Act are up for renewal. President Obama wants them renewed. Among the provisions sought to be renewed is the one authorizing sneak and peek search warrants which allow searches of your home without the feds leaving you notice.

The report released by the Administrative Office of U.S. Courts in July (available here) showed that 65% of the sneak and peek warrants issued in 2008 were issued in drug cases, not terror cases. The feds are using them in routine criminal cases where they want to search before they've finished their investigation. They just tell the judge that notifying the target of the search they were in the house will result in the target telling others who are under investigation, which in turn will interfere with their ongoing investigation. Some of these investigations go on for years.

It's not just drug cases. In 2007, they used them in a cockfighting case.

Why should we renew a Patriot Act provision that is not being used primarily in terror cases? We shouldn't. Nor should we believe those who inevitably will point to Najibullah Zazi and erroneously say the Patriot allowed the feds to "thwart his attack." The feds tracked Zazi using FISA warrants exist independently of FISA.

We need The Justice Act, not the Patriot Act. But thanks to those falsely ratcheting whatever Zazi was up to into a thwarted imminent attack on New York's transit system, we're probably going to get more of the Patriot Act and its end-runs around the Fourth Amendment.

President Obama should have thanked the NYPD (and more accurately, the FBI) for being on the alert for new terror attacks, and perhaps for nipping something in the bud that might (or might not) have ripened into an attack somewhere at some point in the future, but not for thwarting an actual attack.

Update: And check out this former NYPD terror guy in the New York Times trumping Zazi's arrest into a foiled plot by al-Qaida. Even if Zazi was up to no good, it's not even known whether he was helping al-Qaida or the Taliban. They aren't the same and neither are the implications for the war on terror. (More on that here.)

Full post as published by TalkLeft on September 26, 2009 (boomark / email).