Monday, January 2

NSA and the Poisoned Tree

ReddHedd at FireDogLake has an excellent peice up on the rarely talked about "fruits of the poison tree" -- an issue which has crossed my mind regarding Bush's illegal tactics more than once.

The legal doctrine of "fruit of the poisonous tree" is fairly basic in its premise: if the information being used in a case was obtained through illegal means, then any other information gathered via that illegal action is also tainted by the poison from the initial illegal action.


In the case of the Administration having the NSA do domestic spying without first getting warrants as required by FISA, the question becomes whether or not a particular defendant was identified via an illegal wiretap. If that is the case, then any subsequent surveillance of that defendant could be declared tainted as "fruit of the poisonous tree" by the Federal courts. Any investigative work that stems from an illegal warrantless surveillance can be tainted.

This means that any information or evidence against a defendant which was found to be linked to an illegal wiretap - can be excluded and thrown out. This also applies to information gathered via coercian and torture - all can be considered "fruits of the poison tree" and would be inadmissable in court. The cases would fail and the defendants would go free, guity or not.

What a great way to "Protect the Homeland", no?

With the recent New York Times Report that numerous criminal defendants are planning to file motions to determine if illegal NSA evidence was used against them... exactly what the hell is the Bush Administration Thinking when they try to bypass our own Federal Laws by permitting torture (stress positions, waterboarding) and bypassing the FISA court?

If they're thinking at all, they clearly not planning to prosecute any of these defendants in a standard court -- the clear goal is to detain them nearly indefinately, and possibly place them before military tribunals where the impact of "fruits of the poisoned tree" is considerably lessened. According to Council on Foreign Terrorism, Military Tribunals give the prosecution far more leway in persuing their case and...

  • will admit evidence--including secondhand evidence and hearsay, which are banned from traditional courts--so long as it would have "probative value to a reasonable person";
  • will not require prosecutors to establish the "chain of custody" of evidence--that is, to account for how the evidence was transported from where it was found to the courtroom;
  • will provide defendants with military lawyers but allow them to hire civilian attorneys at their own expense;
  • will not allow defendants to appeal decisions in federal courts, but instead petition a panel of review, which may include civilians as well as military officers, to review decisions. The president, as commander in chief, will have final review.
The key element here is that the final review of these decisions will not be made by the Supreme Court, but instead by the President himself as "Supreme" Commander-in-Chief of the armed forces. This power is to being held by a President who signed more than 160 death warrants as Governor of Texas, including against children and retarded defendants (which violates international standards of human rights). In the mind of the Bush Administation the secret non-FISA taps and their potential damage to a case would never occur - because these defendants would never see the inside of a normal courtroom and their cases would never go before a judge required to apply constitutional judgements to them.

It's interesting to note that when other countries have used the same kinds of Military Tribunals, the U.S. State Dept has criticized them...

Have other countries convened military courts to fight terrorism?
Yes. But the State Department has condemned the use of military tribunals to try terrorists in many of these countries, including China, Colombia, Egypt, Peru, and Turkey, because they violate defendants' rights, according to Human Rights Watch. In one well-publicized 1996 case, a Peruvian military court convicted a New York woman, Lori Berenson, of treason and sentenced her to life in prison for her ties to a Marxist rebel group known for violent attacks and kidnappings. The State Department and both houses of Congress condemned the ruling and called on Peru to give Berenson a fair and open trial, noting that thousands of Peruvians were unjustly tried and jailed in the military courts of the beleaguered Peruvian government. In June 2001, after years of appeals and U.S. pressure, Berenson was retried in a Peruvian civilian court and sentenced to 20 years in prison for collaborating with Marxist terrorists.

Bush and his supporters have claimed that "only members of al-qaeda" have been targeted by the secret wiretaps, but the likelyhood of that being true -- of Bush and the NSA refraining from using this unchecked power to snoop on their political rivals is highly unlikely.

Even William Safire thinks so.

Walter Pincus of the Washington Post reported today that NSA wiretap information was given to several other agencies (which makes sense with the removal of the FISA-wall via the Patriot Act).

Information captured by the National Security Agency's secret eavesdropping on communications between the United States and overseas has been passed on to other government agencies, which cross-check the information with tips and information collected in other databases, current and former administration officials said.

The NSA has turned such information over to the Defense Intelligence Agency (DIA) and to other government entities, said three current and former senior administration officials, although it could not be determined which agencies received what types of information. Information from intercepts -- which typically includes records of telephone or e-mail communications -- would be made available by request to agencies that are allowed to have it, including the FBI, DIA, CIA and Department of Homeland Security, one former official said.

At least one of those organizations, the DIA, has used NSA information as the basis for carrying out surveillance of people in the country suspected of posing a threat, according to two sources. A DIA spokesman said the agency does not conduct such domestic surveillance but would not comment further. Spokesmen for the FBI, the CIA and the director of national intelligence, John D. Negroponte, declined to comment on the use of NSA data.

Once people begin to realize that in all reasonable probability we aren't just talking about al-Qaeda supporters, but groups such as Greenpeace, PETA, anti-War protestors, Gays and quite likely the ACLU... then the Fit will truly hit the Shan!

You know this NSA spying thing had to be squirelly when it made even John Ashcroft blanche

We aint seen nothing yet.


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