Over the past 15 years or so, the wall between U.S. intelligence officials and criminal prosecutors has fallen, making it easier for them to share information, especially to fight terrorism, reported the Washington Post. And under the Foreign Intelligence Surveillance Act (FISA), defendants are generally unable to effectively challenge the warrants that authorized the search or surveillance because they are not permitted to see them or the underlying application on national security grounds.
“There has, over the last decade-plus, been an erosion of the formerly bright line between foreign intelligence surveillance and investigation for criminal prosecution,” said Jennifer Daskal, a former official in the Justice Department’s national security division who teaches law at American University.
In criminal cases, by contrast, a defendant and his attorneys are generally entitled to see an affidavit for a warrant and challenge the grounds for its issuance before a judge. Defendants wants to see warrants in their case so they can challenge warrants as based on false information and therefore invalid.
“The government is increasingly using national security tools to investigate domestic criminal cases, bypassing key constitutional protections,” said Patrick Toomey, a staff lawyer with the American Civil Liberties Union. “This problem is only compounded in the digital age, where the FBI is collecting vast amounts of our data for intelligence purposes but then goes sifting through all that information in unrelated criminal investigations.”
In a case in Philadelphia last year, for instance, the government used a FISA order to obtain evidence on a Temple University professor who they apparently suspected was sharing technology with China, but they indicted him on garden-variety wire fraud charges before eventually dropping the case. In an Iowa case, the government used a FISA order to gather information about a Chinese businessman suspected of stealing patented corn seeds from farm fields. In 2013, he was indicted on charges of theft of trade secrets. He pleaded guilty this year to one count of conspiracy to steal trade secrets.
“The issue of the FISA warrant was the subject of an extensive pretrial briefing and an order from the judge finding that the orders were lawfully issued and did not violate the defendant’s due process rights,” said Thom Mrozek, a spokesman for the U.S. attorney’s office in Los Angeles.
Justice Department officials added that Congress has always intended that information obtained through intelligence authorities could be used in criminal prosecutions. “It would be irresponsible for the government to ignore evidence of criminal wrongdoing when such evidence is lawfully collected,” said Justice Department spokesman Marc Raimondi.
“We’ve always cherished the right to confront and cross-examine our accusers and examine the evidence that’s used as the basis for a search of our homes,” said Mark J. Werksman. “And to be told, ‘We went in. We had good reasons. We’re not going to tell you why. Trust us,’ is alarming. Especially when the case becomes a run-of-the-mill criminal case.”
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