Substantial Loss Of Trust: More FISA Fruit Of The Poisonous Tree?
…In April 2006, four months after the N.S.A. program was publicly disclosed, an appellate court directed the trial judge in Mr. Timimi’s case to reconsider it in light of his lawyers’ accusations.
But the issue has been bogged down in court for 18 months, with intelligence officials making a series of classified appearances before the judge, Leonie M. Brinkema, to explain the government’s position. Lawyers for Mr. Timimi and even the trial prosecutors have not been allowed to hear the closed-door discussions.
Jonathan Turley, the lead appellate lawyer for Mr. Timimi, said the defense’s lack of access to crucial evidence had made it hard to litigate the case. “We’re shadowboxing in the courtroom with unnamed officials at unnamed agencies,” Mr. Turley said in a telephone interview.
On Tuesday, at an open hearing in her courtroom in Alexandria, Va., Judge Brinkema appeared to be out of patience as well, lawyers there said. The judge, who also handled the terrorism trial that resulted in a life sentence for Zacarias Moussaoui, expressed frustration over the recent disclosure that the government had misled her at the Moussaoui trial by denying the existence of any tape recording of high-value Qaeda detainees. In a Nov. 9 filing with the court, the government acknowledged that three such tapes did exist but said the prosecutors at the Moussaoui trial had not known of them.
Judge Brinkema told federal prosecutors at the Timimi hearing that she wanted the government to find a way to give trial prosecutors, defense lawyers and her own clerk the clearance to review classified material in the case. That could require the direct intervention of the White House, since Mr. Bush has personally handled decisions on issuing clearances for the N.S.A. eavesdropping program…. (emphasis mine)
Note that the AUSAs trying to prosecute the case have been kept in the dark by the national security team, making for a very difficult decision-making process on every national security-related case. The problem for AUSAs is that bad conduct by some other aspect of the government is, nonetheless, applied to them, whether or not they knew about the misconduct or withholding of evidence or information. The NSA program was very closely held, which means that the bulk of the USAs bringing national security cases nationwide would have gotten hit with this issue when we all found out about it in 2005.
As a prosecutor, if some bad act on the part of investigators or other governmental agencies springs out on you in the middle of a case, you are not happy. Especially if the case happens to be against someone you consider to be a very bad actor who deserves conviction and incarceration for the safety of the community as a whole. To be sandbagged by your own side acting improperly behind your back is infuriating, let alone opening up the community to increased risk with an overturned conviction of someone who is truly dangerous. And this type of deception goes entirely against the grain of the pursuit of justice.
The laws apply to everyone, including the President. Who could have anticipated that the “fruit of the poisonous tree” argument would be raised by defense counsel in these cases as a direct result of the Bush Administration’s failure to follow the laws as written? Oh, wait…
(Photo of the fruit of an Australian stinging tree via emblatame.)