Meet the Fan
In a NYTimes article that should come as no surprise to the legal minds in the audience, defense counsel for a number of charged and convicted terrorism suspects are planning to challenge cases based on the latest revelations on the NSA spying domestically. To do less would be malpractice, because many of these defendants were American citizens, so this ought to be no shock to anyone who has spent time as defense counsel in criminal matters.
But as someone who has also been a prosecutor, I can tell you that this scenario is your worst nightmare in those shoes. No matter how solid your case, no matter how dirty the defendent might be, no matter how clean you thought your case was, the US Attorney is going to have to combat the perception by defense counsel that the defendant found his way into the government crosshairs through a dirty wiretap — which hamstrings the government’s case at the start.
And even though most of the USAttys probably had no idea that the NSA program existed (because it would be way above most of their clearance levels), let alone how it was being handled, they are imputed with that knowledge because the government is supposed to act in an above-board manner.
They are required to turn over the evidence used in the investigation of a defendant as discovery — if crucial evidence was withheld, say that an illegal wiretap was used to target a specific defendant or that during that illegal wiretap, conversations were recorded which would show that the defendant might not be so guilty after all — well, that is a big no no. And that is true whether or not the prosecutor ever knew the wiretap existed, because the law requires that the government conduct itself fairly in these matters, and that they follow the law. Especially when it comes to exculpatory matters for discovery.
Which leads to all sorts of questions:
— Are these cases going to have to be re-tried, wasting loads of taxpayer dollars if parts of the evidence is found to have been withheld — especially exculpatory evidence — because national security concerns were felt at the time to trump civil rights issues?
— Are judges going to find a way to uphold the convictions (especially where you did have overwhelming evidence of a bad actor, which is highly possible, given the fact that this is al quaeda we are talking about), while at the same time smacking down the government through the spectre of prosecutorial misconduct and some dressing down in that regard?
— Or will there be a case where the evidence that may have been withheld was so egrigious that the court will throw out a conviction altogether, whether or not the defendant involved was a terrorist or linked to some sleeper cell in the US?
— Are these defendants even going to get past square one in determining whether or not they were targets of the NSA? This is highly classified stuff, and the Administration is not going to surrender the information easily, no matter the court order (especially if it makes them look bad). Just how much wrangling will it take to get from A to B on this — or will they ever get there?
— How many of these cases are there out there? Will this include immigration deportations? All of those "person of interest" detentions without access to counsel that occurred in the months/years following 9/11?
— The FISA law allowed for wiretaps without any warrant whatsoever for 15 days following a catastrophic event. If any of these defendants were identified in that period following 9/11, presumably the information would be admissible in court under the law. But did the wiretap or other surveillance continue without a warrant after that period? If so, why, considering any information obtained within that 15 day grace period would surely have served as substantial probable cause for a FISA warrant? (And what kind of idiot would risk not getting a warrant if they could lawfully do so? I mean, please, paperwork is no excuse.)
— Why in the hell would you be so careless as to risk all of these legal prosecutions — and future ones — by thumbing your nose at FISA, the 4th Amendment, Article II, and the other criminal warrant requirements under the law?
All questions that are going to have to be answered. And this isn’t just a couple of cases — this is going to come up in every single terrorism case that has hit the court system. Every detention. Every conviction. Every plea. Every trial. Every case currently charged. Every single one. Because to not raise this issue in defense of your client would be legal malpractice, and no attorney is going to risk that.
But what about the US Attorneys whose jobs just got exponentially harder? How does the Administration reconcile their illegal tapdance around the FISA laws now that their being caught puts the entire legal front in the war on terror in jeopardy?
And how do you explain that to a US Attorney whose job it is to enforce the laws as they are written, regardless of who the defendant might be — that because you are the President, you get some sort of pass? Nope. Not buying it.
This is what happens when you play fast and loose with the rules. It comes back to smack you right in the ass. And all of us will be paying the price for it: in court costs, in energy that will now have to be expended on this issue rather than on further needed prosecutions (because manpower only stretches so far), on the possibility that a bad actor will be set free because the President of the United States authorized a segment of our government to cheat the law because to follow it was too much work for him.
"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."
The government is required to prove its case — but it must do so without cheating. That the President went on national television and admitted to these wiretaps and said he’d continue doing them the same way — without the FISA approval required by the laws of this nation for this sort of domestic spying — has now called every, single terrorism case into question.
This is what happens when you fail to think things through. This is why we have the rules and laws in the first place. Someone should have explained that to King George and his merry band of cronies.
Consequences are a bitch. And they are about the hit the fan.