[MIM provides the following letter for your 
information. However, we believe that libertarians 
like these signatories are kidding themselves if 
they actually believe there is freedom in this 
country or they believe that anything like the 
U.S. Constitution is being practiced here in this 
country. Citing illegitimate court judgments 
specifying secret searches only undercuts whatever 
logic there was in the original Bill of Rights, 
which is not subject to court interpretation, 
because the founders believed the citizens had to 
protect it directly.

We encourage libertarians to give up their 
illusions about Amerika and work with MIM to fight 
for the pre-conditions of freedom. That is more 
honest than saying there is freedom now and 
pointing to evermore corrupt court judgments to 
argue within their twisted premises. If an 
"American" is a freedom- loving persyn then the 
ACLU and others more determined are the real 
"Americans." They need to understand that whatever 
the original intentions of slave-owners who 
founded this country, the freedom-lovers are a 
minority under fire in this country, because the 
conditions for "freedom" do not exist in the 
United $tates or the world at-large yet. The 
majority of Amerika wants to eliminate the 
protections for the freedom of the minority. Only 
the distant day of communism will create the 
actual conditions where individuals will have 
freedom.

Finally, we would like to inform readers that 
there is a sense in which MIM and its allies are 
"encapsulated" or under house-arrest, because of 
these "sneak-and-peak" operations referred to by 
the ACLU.]

Re: Sneak and Peek Search Warrants on Anti-
Terrorism Legislation

Dear Members of Congress:

The House and Senate anti-terrorism bills (H.R. 
2975 and S. 1510) contain a "delayed notice" 
provision, section 213, that would greatly expand 
the government's authority to conduct covert 
searches. This means that law enforcement agencies 
can enter a person's home or office, search 
through the person's possessions, in some cases 
seize physical objects or electronic information, 
without the person knowing that law enforcement 
agents were there. This is a significant change 
from the way searches have been conducted 
historically and will diminish privacy protections 
guaranteed by the Fourth Amendment. We believe 
this to be an unwise change. We are especially 
concerned that this very significant change in the 
conduct of searches governed by the Fourth 
Amendment is being considered in the context of 
emergency legislation to respond to the terrorist 
attack, without either the House or Senate holding 
hearings to thoroughly consider the ramifications 
of this change. Furthermore, this provision is not 
limited to crimes of terrorism, but would apply in 
all federal criminal cases. Lastly, unlike other 
provisions of H.R. 2975 that expand the 
government's power to search, this provision does 
not sunset in a few years. 

As a general rule, covert searches for physical 
evidence are illegal. Rule 41 (d) of the Federal 
Rules of Criminal Procedure specifically requires 
that the officer conducting the search "shall 
leave a copy and receipt at the place from which 
the property was taken." Title 18 of the United 
States Code only authorizes delayed notice for 
searches of oral and wire communications (see 18 
U.S.C. 2510 et seq.). Nothing in the criminal code 
permits secret searches for physical evidence. 
Furthermore, the Supreme Court has traditionally 
held that an officer must knock and announce his 
presence before serving a search warrant, absent 
exigent circumstances. See Richardson v. 
Wisconsin, 520 U.S. 385 (1997). 

The Department of Justice claims that the 
provision in the anti-terrorism legislation will 
codify the already existing practice of conducting 
covert searches. It is true that the FBI sometimes 
conducts covert searches, but that fact is 
disturbing given its lack of legal authority to do 
so. The Department of Justice seeks this provision 
precisely because FBI agents do not have the 
authority to do what they are doing.

The Department of Justice is correct in stating 
that the Second Circuit has upheld the 
constitutionality of this practice, provided that 
agents did not seize any items. See U.S. v. 
Villegas, 899 F2d 1324 (2nd Cir. 1990). The Ninth 
Circuit has also permitted the use of evidence 
obtained through covert searches; however, the 
case law is much more convoluted. The first case 
it considered was United States v. Freitas, 800 
F.2d 1451 (9th Cir. 1986). In that case, the 
district court found that covert search warrants 
were invalid under Rule 41 and unconstitutional. 
However, on appeal, the Ninth Circuit held that 
evidence seized pursuant to the warrant could be 
used under the "good faith exception" in United 
States v. Leon, 468 U.S. 897 (1984). Subsequent 
cases seem to have upheld the concept of covert 
searches, but have usually found that the criteria 
necessary to support the search were not met. See 
United States v. Johns, 851 F.2d 1131 (9th Cir. 
1988). Other circuits have not ruled on the 
constitutionality of covert searches, nor has the 
Supreme Court. The most that can be said 
conclusively about the case law on secret searches 
is that it is limited and confused. 

The essence of the Fourth Amendment is that 
searches be "reasonable" and "specific." See 
Berger v. New York, 388 U.S. 41 (1967). Even if a 
secret search warrant complies with the 
constitution by specifying a particular place or 
items to be searched, authorizing law enforcement 
to conduct covert searches increases the 
likelihood that the terms of the warrant will be 
violated. 

Failure to notify a person that their home is 
being searched forecloses any opportunity to 
assert one's Fourth Amendment rights. For example, 
without notice, a person could not point out 
deficiencies in the warrant, such as that law 
enforcement officials are searching the wrong home 
or are searching outside the scope of the warrant. 
Nor can a person challenge the warrant in court. 
Although difficult to do, a person can challenge a 
search warrant by appearing before the court that 
issued it and asking for the warrant to be 
suppressed. It is impossible for a person to 
assert his or her Fourth Amendment rights if the 
person does not realize they are being violated.

We urge the conferees to omit this provision from 
the anti-terrorism bills (section 213). If the 
government insists that it needs this authority, 
it should urge Congress to hold hearings and 
carefully consider this provision. Sneaking the 
provision on to a bill that the Administration 
knows will pass is playing fast and loose with our 
Constitution. We hope that you will protect it. 

Sincerely,

Laura Murphy, Director Washington National Office 
American Civil Liberties Union

Jim Babke, President American Liberty Foundation

Rob Carlson Americans for the Preservation Of 
Information Security

Tom Deweese, President American Policy Center

Grover Norquist, President Americans for Tax 
Reform

Jerry Berman, Executive Director Center for 
Democracy And Technology

Ken McEldowney, Executive Director Consumer Action

Richard Rahn Senior Fellow Discovery Institute

David Sobel, General Counsel Electronic Privacy 
Information Center

Bert Ely Ely and Company

Paul Weyrich, President Free Congress Foundation

Adrian Day, Editor Global Analyst

Larry Pratt, Executive Director Gun Owners of 
America

Steve Dabach, National Director Libertarian Party

James Landrithm Jr. Editor and Publisher The 
Multiracial Activist and Abolitionist Examiner

Irwin Schwartz, President National Association of 
Criminal Defense Lawyers

David Burton Senior Fellow Prosperity Institute

Kathryn Serkes, President Square One Media Network

Sonia Arrison, Director Center for Technology 
Studies Pacific Research Center