Government is Illegally Using Evidence from Secret Court Wiretaps in Criminal Cases, ACLU Charges

Affiliate: ACLU of Oregon
September 19, 2003 12:00 am

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Portland Court Urged to Suppress Illegal Wiretaps


PORTLAND, OR -The government is using its expanded wiretap powers under the PATRIOT Act to bypass the Fourth Amendment in criminal cases involving United States citizens, the American Civil Liberties Union said in a friend-of-the-court brief filed here today.

“”The government’s actions sound an ominous note for the future of privacy in America, in which the Constitution and the courts are treated like an obstacle, rather than a path, to justice,”” said ACLU Associate Legal Director Ann Beeson.

“”No one is questioning the government’s authority to prosecute spies and terrorists,”” she added, “”but we do not need to waive the Constitution in order to do so.””

Legal papers filed today show that the government obtained a broad wiretap order from a secret foreign intelligence court even though its purpose was to introduce the evidence in a criminal case. The ACLU is urging a federal district court in Portland to suppress the evidence because the wiretap orders did not comply with Fourth Amendment protections against unreasonable search and seizure.

In the Portland case, one of the first of its kind, the court is being asked to review the constitutionality of wiretap evidence obtained under the Foreign Intelligence Surveillance Act (FISA), which was recently expanded under the PATRIOT Act. Prior to the PATRIOT Act, the government could only use these wiretaps to gather foreign intelligence, not to gather evidence of criminal activity.

The ACLU brief was filed in the case of the so-called “”Portland Seven,”” in which a group of United States citizens was charged with attempting to travel to Afghanistan in order to contribute their services to the Taliban and Al-Qaida. The government said in legal papers that agents secretly entered people’s homes to install bugging devices that remained in place for months. The devices recorded the conversations of everyone in the house, including children and visitors.

Recognizing the danger inherent in allowing the government to erode traditional Fourth Amendment protections in criminal cases, Senators Ron Wyden (D-OR) and Lisa Murkowski (R-AK) recently introduced a bill to restore the former requirement that FISA be limited to surveillance primarily intended for foreign intelligence gathering.

Notably, the only court to uphold the expanded FISA powers is the secret Foreign Intelligence Surveillance Court of Review, which issued its decision after a closed hearing in which only the government was allowed to present its case. The ACLU and others filed friend-of-the-court briefs in that extraordinary case, but the Supreme Court ultimately declined to review it, leaving the decision intact – and squarely at odds with the Fourth Amendment. An ACLU feature on FISA and related litigation is at /SafeandFree/SafeandFree.cfm?ID=12290

ACLU of Oregon Executive Director David Fidanque said the secrecy of FISA proceedings invites abuse by the FBI and other federal agencies.

“Before trial in a normal criminal case, defendants would have a right to examine the statements made by the government in order to get the wiretap order,” Fidanque said. “But under the PATRIOT Act, all of that material is classified. Even if the government intentionally lied to the FISA Court, the defendants’ lawyers aren’t allowed to see that material unless they can show evidence of the government’s deception. Obviously, there is no way to make that showing if the material is secret. It’s a classic Catch-22.”

The ACLU’s brief in the Portland case, U.S. v. Jeffrey Leon Battle et al., was joined by the ACLU of Oregon and the National Association of Criminal Defense Lawyers. The brief, authored by ACLU attorney Jameel Jaffer, is online at /node/35446

Judge Robert Jones, who is presiding in the case, will hold a hearing in the Motion to Suppress on Oct. 14.

The expanded wiretap powers are among many provisions of the PATRIOT Act that have come under fire from critics on the right, left and center. More than 160 local governments representing some 30 million Americans have passed resolutions opposing the law as an overly broad threat to constitutional rights.

The ACLU noted that some of the restrictions on government surveillance that were erased by the PATRIOT Act had been enacted after past abuses — including efforts by the FBI to spy on civil rights leaders and anti-war demonstrators during the Cold War. An ACLU has written a case study on the FBI’s surveillance of Dr. Martin Luther King, entitled The Dangers of Domestic Spying by Federal Law Enforcement: A Case Study of FBI Surveillance of Dr. Martin Luther King.

An ACLU website feature on FISA is online at /SafeandFree/SafeandFree.cfm?ID=12290

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