FISA warrants increasingly being used in domestic criminal prosecutions

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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GateHouse: America’s secret courts

 

Matthew T. Mangino

GateHouse News Service

June 28, 2013

 

Edward Snowden, a former subcontractor for the National Security Agency (NSA) and the Central Intelligence Agency, leaked a classified ruling by the secret Foreign Intelligence Surveillance Court (FISC). The ruling renewed NSA’s authority under the Patriot Act to collect all domestic-calling records of a subsidiary of cellphone giant Verizon Communications.

 

The recent disclosure of the leaked documents has rekindled a debate over secrecy, intelligence and national security. The debate has renewed concerns over the apparatus in place to regulate the government’s intelligence capabilities.

 

The FISC was established by Congress in 1978, through the Foreign Intelligence Surveillance Act (FISA), legislation which was drafted in response to the findings of the Church Committee. Named after U.S. Sen. Frank Church — the Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities was responsible for establishing the secret court to curb abuses by the executive branch of government.

 

The NSA, the CIA, the FBI and even the U.S Army had conducted wiretaps, bugging and break-ins without judicial warrants under Presidents Lyndon Johnson and Richard Nixon. That conduct violated the U.S. Constitution’s Fourth Amendment ban on unwarranted and unreasonable searches and seizures.

 

When FISC was established the chief justice of the U.S. Supreme Court was authorized to designate seven federal district court judges to review warrants related to national security investigations.

 

The Patriot Act increased the number of judges serving on the court to 11. The Patriot Act also extended the time periods during which surveillance could be conducted and specifically included terrorism investigations under the purview of FISC.

 

Pursuant to FISA, a secret warrant may be justified for surveillance of suspected spies and terrorists. Each FISA application must contain “the Attorney General’s certification that the target of the proposed surveillance is either a 'foreign power' or 'the agent of a foreign power' and, in the case of a U.S. citizen or resident alien, that the target may be involved in the commission of a crime."

Did the government go too far in requesting records of all domestic phone calls from a cellphone company?

 

"The practice is akin to snatching every American's address book — with annotations detailing whom we spoke to, when we talked, for how long, and from where," the ACLU said in a complaint alleging the NSA violated the Constitution.

 

The problem with requesting the domestic telephone calls of all subscribers of a specific telecommunication company is, according to Elizabeth Goitein — co-director of the Brennan Center for Justice’s Liberty and National Security Program — the Patriot Act “does not permit the ‘collect now, establish relevance later’ approach.”  The NSA and FBI said that while the government has this massive amount of data, they can’t look at it without further permission from FISC.

 

The government is required to show in its original application to FISC that all of the information sought is relevant to a terrorist or intelligence investigation. Goitein told NPR, “Once information is in the government’s possession, we must rely on the government to police its own use of the information.”

 

According to a recent op-ed by Tim Weiner, a former national security correspondent for the New York Times, in the aftermath of 9-11 the Bush administration believed, "the Fourth Amendment would not apply to military operations the President ordered within the United States to deter and prevent acts of terrorism."

 

The Obama administration has apparently continued under the same premise. To President Obama’s credit he recently said that he "welcome[s] this debate" and thinks it's "good that we're having this discussion."

 

Weiner’s piece included a more ominous warning from former FISC Judge Royce Lamberth, "What we have found in the history of our country is that you can't trust the executive.”

 

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly and George and the former district attorney for Lawrence County, Pa. You can read his blog at www.mattmangino.com and follow him on Twitter at @MatthewTMangino.

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