FindLaw's Writ - Ramasastry: A Recent Oregon Ruling Allowing Secret Warrants in Domestic Terrorism Cases May Set A Troublesome Precedent: Last week, an Oregon federal court heard oral arguments on a motion in United States v. Battle, a case against five terrorism suspects. The defendants are accused of conspiring to assist al-Qaeda forces in fighting U.S. troops in Afghanistan. Arrested last October, the five are predominantly African-American converts to Islam; the government alleges that together, they constituted a terrorist cell. In their argument, the defendants contended that the government should reveal the justification that support the issuance - by the clandestine Foreign Intelligence surveillance Act (FISA) Court - of the secret warrants that enabled the FBI to surveil them. Specifically, the defendants seek to review the warrant applications the FBI submitted to the FISA Court, on the basis of which the warrants were granted. Pursuant to the warrants, the FBI secretly wiretapped the suspects' phones and planted microphones in their homes. As a result of its surveillance, the FBI ended up intercepting more than 271 conversations. Without knowing the basis for the warrants, the defendants contend, they cannot know if their Fourth Amendment rights against unreasonable searches and seizures were abridged. The judge ruled, however, that the basis for the warrants will remain secret.
This is a very troubling development. Unless the ruling is reversed on appeal, it will mean that a U.S. citizen can now be convicted of a crime, without ever knowing the reasons why the government was given permission to spy on them in the first place.
It will be interesting to see what happens with this case. For one thing, I'm surprised that the government is even allowing it to be heard in open court; FISA warrant cases are normally channeled through the FISA appeals court (constituting the FISA justices en bank plus Rehnquist) and thence to the Supreme Court.
To be honest, I've never understood how a FISA case could even be tried in district court. Surely the Constitution would require the disclosure of all available evidence to the defense; how can you defend yourself against anything if you don't know how and why you've been charged? It wouls seem reasonable that the result of any FISA-initiated criminal case would be that the charges should be summarily dismissed for the up-front, in your face Constitutional violations involved.
Apparently, the government doesn't worry about silly little things like the Constitution any more.
Posted by iain at March 05, 2003 01:27 PMComments
