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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