The American Civil Liberties Union (ACLU) celebrated a small court victory — really, more of a concession — in a Tuesday article, lauding the government’s decision to honor a pledge it had made before the Supreme Court to notify criminal defendants if evidence obtained under the Foreign Intelligence Surveillance Act (FISA) is brought against them in court.
Watching United States v. Qazi, an obscure Florida case, the ACLU observed that the government had admitted it is obligated to inform defendants of any evidence prosecutors had gained through surveillance conducted under provisions in the FISA Amendments Act (FAA).
ACLU called that admission an important concession. But the ACLU noted the government was essentially admitting it would, from now on, police itself and act on faith. The idea of relying on the government’s self-restraint illustrates “several significant qualifiers that highlight a larger problem,” the civil liberties group noted.
Because only the government has the power to prosecute, it ultimately controls which defendants — if any — have the opportunity to challenge the FAA. Thus, the government can continue to avoid court review of the statute by choosing not to use FAA-derived evidence at trial, by offering impossible-to-turn-down plea bargains or, in the extreme case, by abandoning prosecutions that risk an adverse ruling. In our legal system, judicial review should not occur only at the grace of the executive branch.
An even more troubling possibility exists. Reuters reported yesterday that law enforcement agents may be actively seeking to conceal the source of evidence derived from NSA surveillance, in order to avoid court challenges.
It’s a relatively safe bet that any amount of forthcoming contrition or self-policing on the part of the Feds over the extent to which law enforcement can unConstitutionally and furtively deploy its massive panopticon machine is momentary — a pre-emptive damage control measure to demonstrate that, amid spy scandal after spay scandal, it can be trusted. People’s eyes are focused on Big Data and Big Brother right now, so now’s the time for Big Brother to throw the media a bone. It won’t last. In fact, it’s meaningless in the present context of every other extraordinary Federal abuse of due process.
ACLU points out that, for every tiny step forward, there’s an enormous leap backward:
Another report indicates that the NSA may have referred as many as 30 non-terrorism criminal cases to the Department of Justice based on information it obtained through electronic surveillance. Yet, to date, not a single defendant has received notice of prosecutors’ intent to use FAA-derived evidence.
If law enforcement agencies are manufacturing an “independent” basis for their criminal investigations in order to conceal their reliance on NSA surveillance, that practice violates both the letter and the spirit of the law. Criminal defendants have the right to know when the government’s evidence is derived from the NSA’s interception of their communications, so that they can test the lawfulness of that surveillance. Judicial review of the government’s warrantless wiretapping program should be more than a hypothetical promise to the Supreme Court.