A colleague asked me a few days ago if — as is suggested in tomorrow’s New York Times article, “Defense Lawyers Plan Challenges Over Spy Efforts” — the revelations of illegal wiretapping by the NSA and other government agencies may open the door for challenges to federal prosecution cases founded in such illegally obtained evidence.
Perhaps, in federal courtroom after federal courtroom, Bush and Cheney will find out that their end-run around the laws may let off more real terrorists than they caught.
A legal term that comes to mind is “fruit of the poisonous tree”:
in criminal law, the doctrine that evidence discovered due to information found through illegal search or other unconstitutional means (such as a forced confession) may not be introduced by a prosecutor. … (Law.com Dictionary)
Who knew? Nobody?
Even federal prosecutors did not know of the program’s existence and its role in the origination of evidence:
Because the program was so highly classified, government officials say, prosecutors who handled terrorism cases apparently did not know of the program’s existence. Any information they received, the officials say, was probably carefully shielded to protect the true source.
No wonder defense attorneys like Gerry Spence (who is “aghast“) are very interested. Writes the NYT:
Defense lawyers in some of the country’s biggest terrorism cases say they plan to bring legal challenges to determine whether the National Security Agency used illegal wiretaps against several dozen Muslim men tied to Al Qaeda.
The lawyers said in interviews that they wanted to learn whether the men were monitored by the agency and, if so, whether the government withheld critical information or misled judges and defense lawyers about how and why the men were singled out.
The expected legal challenges, in cases from Florida, Ohio, Oregon and Virginia, add another dimension to the growing controversy over the agency’s domestic surveillance program and could jeopardize some of the Bush administration’s most important courtroom victories in terror cases, legal analysts say.
The question of whether the N.S.A. program was used in criminal prosecutions and whether it improperly influenced them raises “fascinating and difficult questions,” said Carl W. Tobias, a law professor at the University of Richmond who has studied terrorism prosecutions.
“It seems to me that it would be relevant to a person’s case,” Professor Tobias said. “I would expect the government to say that it is highly sensitive material, but we have legal mechanisms to balance the national security needs with the rights of defendants. I think judges are very conscientious about trying to sort out these issues and balance civil liberties and national security.” …
Oh, those pesky “conscientious” judges …
Even the conservatives’ judges are rising up. The Fourth Circuit’s Judge J. Michael Luttig wrote the “stunning rebuke to the Bush administration [Dec. 21, 2005], refusing to allow the transfer of Jose Padilla from military custody to civilian law enforcement authorities to face terrorism charges in criminal court.”
A shocking note to the Circuit’s decision was that its author, Judge Luttig, is well-known as “a strong conservative judicial voice who has been considered by Mr. Bush for the Supreme Court.” (When your closest judicial allies are pissed off, watch out.)
FISA court judges also interceded to rein in the administration. From “Secret court modified wiretap requests,” Seattle P.I. D.C. bureau, Dec. 26, 2005 (via Raw Story):
Government records show that the administration was encountering unprecedented second-guessing by the secret federal surveillance court when President Bush decided to bypass the panel and order surveillance of U.S.-based terror suspects without the court’s approval.
A review of Justice Department reports to Congress shows that the 26-year-old Foreign Intelligence Surveillance Court modified more wiretap requests from the Bush administration than from the four previous presidential administrations combined. …
Judge Lutwig and fellow judges further felt compelled to put a muzzle on Bushco. As the Miami Herald editorialized today:
… continued below …
The extraordinary rebuke issued by the U.S. Fourth Circuit Court of Appeals to the Bush administration last week in the case of ”dirty bomber” José Padilla may be a watershed in the debate over the presidential exercise of wartime powers. This has been a friendly venue for the administration on the issue of ”enemy combatants,” but it refused to endorse the twisted legal maneuvering over the Padilla detention. The implicit message is that the administration is running out of credible arguments to support an imperial view of the president’s wartime powers.
If this is still a country run by the rule of law — not the lawmen’s rule (or lawlessmen’s rule) — then Bush et al. have dealt a severe blow to cases which may or may not be serious.
The monumental Bush blunder — and the “Barking Up Every Tree” (as Howard Kurtz put it the other day) — may also have ensnared activists in federal terrorism charges that may not hold.
What about animal rights activists who’ve been the subject of this vast network of wiretapping, and some of whom have been arrested on charges of terrorism?
Indictment alleges conspiracy to shut down product testing
Saturday, December 24, 2005
By PAUL SHUKOVSKY
SEATTLE POST-INTELLIGENCER REPORTER
The FBI’s domestic terrorism squad arrested a Seattle animal-rights activist yesterday on charges that he conspired to use illegal and coercive tactics to shut down a company that tests products on animals.
Joshua Harper was one of seven people arrested by agents in Seattle, California, New York and New Jersey as part of an investigation into SHAC, which stands for Stop Huntingdon Animal Cruelty.
In pursuit of its goal to shut down Huntingdon Life Sciences — a New Jersey product testing company that SHAC accuses of “horrendous animal cruelty” — activists have torched Huntingdon employees’ cars, vandalized shareholders’ homes and made threats against their families, according to an indictment unsealed yesterday.
Harper, 29, faces a single felony count of conspiring to commit animal enterprise terrorism. If convicted, he could spend up to three years behind bars and be fined $250,000.
Released yesterday pending further court hearings, Harper said: “These charges weren’t brought against me because I am a criminal or a terrorist. They have been brought against me because I have been very effective in my activism. As my activism has begun to affect the profit margins of companies that make their living by killing animals, they had to retaliate.”
Among the small group of animal rights activists present in support of Harper was Rachel Bjork, outreach coordinator for the Northwest Animal Rights Network. Bjork said undercover activists have videotaped Huntingdon employees “punching beagle puppies in the face to make them stop whining. It would cause any living creature pain to have bleach poured on them.”
When asked whether the tactics SHAC is accused of cross the line, Bjork said: “What SHAC does gets results, and it gets media attention.”
Harper denied being a member of SHAC, but said he supports their goal of shutting down Huntingdon. … (Seattle P.I.)
Will the attorneys for Josh Harper and other animal rights activists accused of terrorism also pursue challenges to the evidence, and accusations that evidence was withheld? The NYT reports tonight:
Government officials with knowledge of the program have not ruled out the possibility that it was used in other criminal cases, and a number of defense lawyers said in interviews that circumstantial evidence had led them to question whether the security agency identified their clients through wiretaps. […]
… [D]efense lawyers say they are eager to find out whether prosecutors – intentionally or not – misled the courts about the origins of their investigations and whether the government may have held on to N.S.A. wiretaps that could point to their clients’ innocence.
‘”If I’m a defense attorney,’ one Justice Department prosecutor said, “the first thing I’m going to say in court is, “This was an illegal wiretap”.’ ”
Sounds like a plan.
NOTE: ReddHead has a write-up too.
for civil rights attorneys.
Amusing 🙂
Susan — once again.
I also found the article (courtesy Knight-Ridder via Raw Story) about the Kurdish militia ready to declare independence interesting.
The time is SOOOOO past allowing this regime to do any further damage not only to the USA but to the planet. Every time I put hope in Bush’s actions finally being enough to shake the Kool Aid off the selectively ignorant in this country, the corporate media manages to get distracted by shiny, shiny shoes (to quote Kelly Bundy) errrrr, Wars on Groundhog Day, errrr Liberals letting Osama plot the next terror attack errrr .. oh, never mind — preaching to the choir and all that.
Wish I could remember the fella’s name interviewed on Best Of Majority Report tonight — he held out hope of network news programmers gaining a conscience, while challenging us to support independent media/news.
From the Miami Herald editorial linked above:
Not to sound like a broken record or anything, but if Alito replaces O’Connor on the Supreme Court, I think we all know that Padilla would go back to being a slam dunk for BushCo when it gets to the high court. And I shudder to think what that means in the long term.
it just jumped out at me when I read the editorial at 6 am…
Off topic? Nanh, I wouldn’t be surprised if Bush/Gonzalez expected the court to be packed with Roberts & Miers by the time Padilla’s case made it to the Supreme Court. O’Conner gave them a pass on Hamdi, but with the caveat Susan quotes; they don’t want to risk her opinion again. These nominations are all about executive authority for Bush & less about the ‘usual’ issues like abortion.
Does anyone else feel that prosecuting animal rights and environmental activists with terrorism charges is a little overboard? I don’t see the (legal) difference between, say, burning down an animal research facility & an arson-for-profit case, nor why they both shouldn’t be prosecuted under normal criminal statutes.
The “terror” charge is useful to put down environemtalists thoigh. For an off-topic link, take a look at “Eco Terrorism”: Cui Bono?
When the govt is allowed to set a precedent for claiming terrorist ties to any group on a terrorist threat list and allowed to place groups on lists without sufficient evidence then more people fall under the suspected status without reason.
Anyone on a mailing list for environmental or animal rights could be associated with terrorist groups by this slim connection.
That’s what they’ve been doing to detain and/or prosecute so many Muslims.
This is a subject I’ve been trying to introduce here.
Is the goal putting a muzzle on Bush or justice? Not many people wanted to talk about injustice when it may have been innocent people accused of terror crimes.
You know, (and I hope this isn’t too off topic) these warrentless wiretaps have really affected my perception of free speech.
I feel like I’ve been silenced.
How wise is it to be too open about how disgusted I am by the Bush Administration? To talk about it here? Or on those Yahoo Groups, for example. Or UseNet? Or Salon’s Table Talk?
How easy is it to grab Internet Packets & scan them? Is it possible? Or would NSA have to go to Booman, or Yahoo or whoever owns the discussion.
For a long time now the private companies have been collecting all of the data on us and holding onto it. As companies are bought and sold the data goes with them and is compiled into larger databases as a valuable asset. The government has had the power to have access to this info. I forget which Bush admin law fine-tuned that but several tears ago there was a big deal made about the govt not owning our info. The news made it sound like it was for our benefit but a closer look showed the condumer was the loser.
Programs have also been in place to convert audio to text and archive it. It’s safe to say all email has been archived and probably the usenet groups too. The instant messenger programs all went through servers in another country, by some reports, so it’s safe to assume that all chat messages have been archived or most of them anyway. There’s ahundred different ways to get away with this and still be legal. It’s the govt-private business relationships that have allowed the corporations to own our info and the govt to have near unlimited access to it.
Wait until everyone starts getting tax adjustment notices for failing to declare Ebay or similar sales as income…yikes!
Exactly. We’ve got no reason to trust these insitutions, their motives (why would yahoo offer this powerful service totally for free?), or their committment to protecting our privacy (have we even examined if they have such a committment?)
Yet, how many people reading these comments participate in those forums everyday?
When we tell funny little stories about our families or people at work, how much danger do we put them in? And they have no say about that risk at all.
Yup.
There’s a lot to using common sense in online safety but what the govcorps has done is more sinister. They’ve made it appear that our information is safe when owning it for future exploits was part of the plan.
It would be the difference between posting the personal info of someone with the intent of others causing harm and the ability of a gov-corp person with access to use a program scanning all databases to piece together the info to find someone to harm them.
Excellent post, Susan.
This administration is about unbridled power. Justice never enters into their equation.
I want to know what the heck we can do about it? Is there a way to find out if they have been scanning our data? Do we choose to jeapordise ourselves and write borderline inflammatory posts to bait them? I really don’t know…I am asking for ideas. I know the congress is on vacation(again) but there has been so little said or written on the NSA ILLEGAL wiretapping. Is this another one that the Cabal of Fascists will get away with? Are we really powerless to do anything?
It’s been this way for most of Bush’s admin and most intrusive since late 2002 early 2003. Those laws went into effect without getting Congress to listen to concerns or failed to act or tried but was overpowered, whatever.
Sometime in 2003 as it was looking more suspicious for surveillance I saw it as a chance to speak out truthfully to let the watchers know we knew what was going on and tried to effect some change that way. To speak out and not be a threat to our security is crucial to our society. Most of the ones who were/are watching are good honest dedicated people and are just doing their job. It’s rogue groups, individuals and BushCo that is trying to keep the damaging parts of truth concealed for their own benefit.
A legal term that comes to mind is “fruit of the poisonous tree”:
I saw a mention of a surveillance program that violated FISA and was directed at journalists and members of the intel agencies of the admin…spying on their own… that had mentions of first fruit in the description. It seemed to fit the stories around of the poison fruit or poison tree.
If nothing else it makes the references to roots and trees by Libby, in his letter to Miller, that much more curious.