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?

Pro-animal activist accused of terrorism

Indictment alleges conspiracy to shut down product testing

Saturday, December 24, 2005



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.

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