So, I was reading a Wall Street Journal article (“How Patriot Act Helped Convict Man in Baby-Food Ring” by John D. McKinnon 4 April 2006) and it really got me thinking about human rights, terrorism, national security and all that mumbo jumbo.
While I’ll include snippets from the article here and there (it’s a really long article but well written), the basic issue is the following:
A Lebanese American citizen is being charged in a state level criminal case with evidence used from federal-intelligence gathering capabilities. Usually, local authorities will ask a local judge for a warrant to conduct surveillance on a suspect. Regardless if the suspect is charged with a crime or not, the (ex)-suspect is given full access to the warrant, why it was issued, and all evidence collected. In this case, however, the evidence gathered against the suspect was issued at the federal-level (in a separate investigation related to terrorism not his criminal case) under the 1978 Foreign Intelligence Service Act (FISA) by a federal judge who, for various reasons, did find some sort of probable cause. Moreover, the suspect, regardless if they’re charged or not, does not know or have any access to any evidence detailing why the individual was being observed…citing national security concerns (i.e. if methods are revealed, even to true terrorists, then terrorists would understand how U.S. intelligence capabilities work and develop more advanced methods of planning and implementing potential attacks).
Below, is a snippet from the article supporting the suspects side…
**Keep in mind that the FISA warrant is DIFFERENT from the recent controversial warrantless wiretaps that President Bush authorized the National Security Agency to conduct.**
Mr. Jammal is appealing, contending that FISA evidence used against him was illegally obtained and crippled his defense. He says the charges against him were trumped up by a government determined to show progress in the war against terror.
Even with warrants, critics fear defendants' rights to a fair trial will be eroded, as authorities use intelligence-gathering techniques to pursue criminal cases. "If evidence is procured by methods that wouldn't stand up to the Fourth Amendment, the courts are going to have to stop it," said Rep. Jerrold Nadler of New York, top Democrat on the House Judiciary subcommittee on the Constitution.
Clifford Fishman, a Catholic University law professor who has studied wiretap laws, says using FISA-authorized wiretaps to bolster an already pending criminal case "would be a clear misuse of the law." A spokeswoman for Mr. Charlton, the prosecutor, said that the "basis for the FISA intercept was unrelated to [Mr. Jammal's] involvement in organized retail theft," adding that it was conducted by a separate investigative team. She said officials can't reveal reasons for seeking the FISA warrant.
As Mr. Jammal's trial approached, the FISA-authorized wiretaps also posed difficulties for his court-appointed lawyer, Michael Reeves. The government insisted that Mr. Reeves obtain security clearance to examine classified evidence in the case and agree not to talk about the evidence with anyone, even his client.
Mr. Jammal insists a review of the voluminous, classified FISA evidence would show that he warned would-be sellers that he would not accept stolen property. He also says that the tapes could have helped undercut the testimony of former associates who agreed to plea bargains and testified against him
Below are snippets arguing for the government’s side…
Andrew McCarthy, who prosecuted Sheik Omar Abdel Rahman on terror charges in New York, says the old dividing wall between foreign intelligence operations and domestic criminal investigations doesn't make sense in the fight against terrorism. "They usually commit an array of garden-variety crime in the course of trying to conduct terrorism operations.” That means investigating crimes and gathering intelligence through plea bargains and other techniques can be an important tool.
Paul Charlton, the U.S. attorney for Arizona whose office brought the case against Mr. Jammal, says in an interview that existing procedures properly balance the rights of defendants with the government's need to maintain secrecy to protect national security. He notes that, as in all FISA cases, a federal judge approved the initial application for the Jammal warrant privately. Prosecutors were "scrupulous" about avoiding suggestions at trial that Mr. Jammal was linked to terrorism, he adds, trying to ensure he got a fair trial.
While Mr. Reeves pondered the matter, he asked the court to order the government either to reveal the basis for issuing the FISA warrant so he could challenge its legality or bar the evidence altogether. The government countered with an affidavit from then-Attorney General John Ashcroft who said telling defense lawyers why the FISA warrant was issued "would harm the national security." The federal trial judge, Frederick J. Martone, sided with the government.
So, all the needed “core” evidence above…what do you all think?
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