Potential NSA wiretaps in Oregon 'Green Scare' case?

Daniel McGowan's lawyers filed a brief in August demanding the US Attorney go to the NSA and FISA and see whether they have any wiretaps of the defendants in this case. The brief can be read at http://portland.indymedia.org/media/media/2006/09/345380.pdf

At an August 22nd court hearing on the discovery motion, the US Attorney's office addressed the NSA wiretap issue, saying that they do not have clearance to present that discovery. They said they had contacted an attorney in the Counterterrorism Division, and that it would take up to three weeks for them to respond to the brief. McGowan's attorney, Amanda Lee, argued that the discovery request was filed in March, and specifically requested the NSA discovery. The US Attorney didn't file a response to that brief until early this month (August). Lee added that it was the US Attorney's responsibility to have a person from the NSA come to court and make representations. She said that the FISA court and FBI surveillance discovery had not been handed over, either. US attorney Peiffer responded by saying that the US Atty's office didn't have clearance for dealing with FISA materials either.


The media has been slow to get on this story but two weekly papers in Oregon, the Willamette Week and the Eugene Weekly, have published stories in the last two weeks.The Eugene Weekly and Willamette Week article are below. The next court date in the case-set to discuss what wiretaps the NSA does or does not have on these defendants is set for October 31, 2006.

To help the defendants, please see Daniel McGowan's support page at http://www.supportdaniel.org, contact Nathan & Joyanna's team at supportersofnathanandjoyanna [at] gmail.com, and see fellow non cooperating defendant in a seperate case, Briana Water's site at http://www.supportbriana.orgThere is also support information on http://www.greenscare.org and http://www.cldc.org

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http://eugeneweekly.com/2006/09/07/news1.html
Eye on ELF: Were eco-radicals illegally wire-tapped?
BY KERA ABRAHAM

On Aug. 22, federal judge Ann Aiken demanded to know whether the government used National Security Agency (NSA) surveillance to indict three eco-sabotage defendants. Just a week earlier, a federal judge in Detroit had ruled NSA surveillance illegal on the grounds that it violates the Fourth Amendment freedom from unreasonable search and seizure. If it's found that warrantless wiretapping was used to indict the eco-tage defendants, the entire case could be thrown out.
With the high-profile prosecution of 14 radical environmentalists for a slew of eco-sabotage acts across the West between 1996 and 2001, the federal government broadened the definition of "terrorist" to include members of the Earth Liberation Front and Animal Liberation Front, monkeywrenchers who like to set wild horses free and burn SUVs in defense of the planet. Although the eco-tage defendants haven't been charged with terrorism per se, prosecutors' frequent use of the label has given them access to counter-terrorism tools such as the Joint Terrorism Task Force, "enhanced" sentences and gobs of taxpayer money.

It's a perplexing juxtaposition, the linking of relatively angsty, environmentally-motivated sabotage — namely, a string of arsons that harmed no living being but caused millions of dollars in property damage — with murderous, Osama-style acts of terrorism. The latter threat has given the FBI a $1.2 billion annual domestic counter-terrorism budget and expanded powers to tap American citizens' phones and read their emails without warrants. But rather than apprehending real domestic terrorists such as Mohammad Atta, the FBI has produced a dozen-odd disgruntled green anarchists. Which raises the question: Should constitutionally dubious counter-terrorism tools be used on domestic dissidents?

Judge Aiken's ruling stems from a joint discovery motion made by defense attorneys last March, asking the government to hand over all information related to the indictments of Daniel McGowan, Darren Thurston and Jonathan Paul — including any information obtained by NSA surveillance.

Government prosecutors responded in early August, claiming that they had been diligent in handing over the discovery records — some 28,000 pages of documents, 71 CDs (likely recordings made by snitches with wires), four DVDs and three videotapes. But they hedged the request for information obtained by NSA surveillance.

"[T]he government can state with certainty that no information or material in the possession of the prosecution team in this case was obtained under the Foreign Intelligence Surveillance Act (FISA) or by the National Security Agency (NSA)," prosecutors stated.

Those words — "in the possession of the prosecution" — are heavy qualifiers, leaving the defense team to wonder if an agency other than the U.S. Attorney's Office, such as the FBI or the NSA, has used material obtained by illegal surveillance to nab the alleged eco-saboteurs.

The prosecutors admit that even if their leads had sprouted from illegal surveillance, they wouldn't know it. "[T]he government attorneys prosecuting this case do not have the proper clearance or access to obtain FISA and NSA information, so they cannot simply call NSA or FISA-related agencies and confirm that the requested information does not exist," they wrote.

"[T]he court should neither intervene nor order further search for or delivery of materials," the response concluded.

But Judge Aiken disagreed. At an Aug. 22 hearing in Eugene, she told prosecutors that they would need to provide an updated response to the defense's discovery request by Sept. 12, addressing the defense team's question: Was warrantless NSA or FISA surveillance used in this case?

The prosecution balked. "I've been working on this case for 10 years," federal prosecutor Stephen Peifer told Aiken, "and the term FISA has never come up."

"To you," Aiken clarified pointedly.

Defense attorney Amanda Lee, representing Daniel McGowan, said she wasn't surprised that the prosecution was pleading ignorance. "That's to be expected," she said. "The very idea of the NSA program is that very few people know about it."

Lee said that prosecutors can't use material illegally obtained by warrantless wiretapping in court. "But that doesn't mean we aren't entitled to full disclosure of it," she said. "It could have played a role in their investigation, and if so, we need to know that."

Asked if the prosecution has accepted any evidence from the FBI without questioning its source, Peifer replied: "We know the source of everything … but as a local prosecutor, I don't get involved in NSA issues … and so I'm not in a position to answer that question."

Judge Aiken clearly asked prosecutors to find out whether warrantless wiretapping was used to build a case against the defendants. But Peifer wouldn't confirm that, saying only, "She's ordering us to respond to the request that was filed."

Lee doubts that the prosecution will follow Aiken's order in good faith. "I came away with the distinct impression that their plan is to submit further briefing about why they don't have to tell us anything," she said.


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http://www.wweek.com/editorial/3243/7938
Terror-fying The Greens: Did investigators use post-9/11 warrantless wiretaps to bust accused eco-saboteurs?
By Angela Valdez
8/30/2006

A federal judge in Eugene wants to know whether the government used warrantless wiretaps to investigate a group of radical environmentalists charged with committing more than a dozen acts of sabotage in Oregon and the West between 1996 and 2001.

Since indictments were issued last year, six defendants have brokered plea agreements in exchange for testimony, leaving four non-cooperating witnesses headed for trial, three fugitives and one defendant who committed suicide in jail.

The mainstream media paid no attention to U.S. District Judge Ann Aiken's ruling last week telling federal prosecutors to respond to questions about surveillance.

But it's significant for two reasons. First, it makes way for a new challenge to the Bush administration's hotly controversial warrantless surveillance programs. The administration insists that it has the constitutional authority to spy on terrorists without judges' approval; this case would most likely provide the first challenge to that stance involving a domestic "terror" case.

Second, the issue could ultimately unravel the high-profile charges against a group of activists associated with the Earth Liberation Front, which the government has portrayed as one of the most serious "terrorist" threats to domestic tranquility.

"It's going to be embarrassing...for the government if they find out they've used warrantless surveillance," says Lewis & Clark Law School professor John Parry, who specializes in criminal and constitutional law. "They're going to have some explaining to do."

Facing Aiken's Sept. 12 deadline, the government may simply refuse to respond, most likely citing something called the state secret privilege—a tactic Aiken may or may not buy.

If the government does testify that it used warrantless surveillance, the judge will have a chance to rule on the big question: whether the wiretaps, approved with nothing more than the president's OK, violate Fourth Amendment guarantees to freedom from unreasonable searches and seizures.

If the judge rules that investigators' methods broke the law, then the resulting evidence could be excluded. Depending on how much evidence was gathered—directly or indirectly—through the use of warrantless wiretaps or other electronic surveillance, prosecutors may have a hard time continuing their case.

"The entire case could be thrown out," says Lauren Regan, executive director of the Civil Liberties Defense Center in Eugene, which has assisted in the defense.

Assistant U.S. Attorney Stephen Peifer said he could not comment on the case.

The Bush administration's warrantless surveillance program came to light in a New York Times report in December 2005. The paper reported that shortly after Sept. 11, 2001, President Bush gave the go-ahead for federal investigators to eavesdrop, without a warrant from a judge, on Americans' electronic communications with people overseas. The administration is adamant that it has the constitutional authority to snoop on international terrorists—and though the Eugene eco-sabotage case appears to be an entirely domestic matter, investigators have made a point of alleging that ELF has international connections.

Since news of the warrantless wiretaps broke, dozens of civil lawsuits have been filed against the Adminstration, including one by an Oregon-based Islamic charity, decrying the program as a slap at civil liberties. Two weeks ago, a federal district court judge in Detroit issued the first opinion in a civil case declaring the program unconstitutional.

The criminal case in Eugene presents an advantage to the defense not offered in the civil matters: If warrantless surveillance was indeed used, the government, not the defendants, bears the burden of proof. The prosecutors must show that illegal means weren't used to gather evidence.

In motions before Aiken, defense attorneys have asserted that the government's repeated references to terrorism are a strong sign that warrantless surveillance played a role in the investigation.

Last May, a deputy assistant director of the FBI testified before Congress that the ELF and the related Animal Liberation Front represent "one of today's most serious domestic terrorism threats." The "terror" label made investigators' jobs easier in the Oregon case, giving them access to terrorism task forces and interstate warrants.

Of course, the defendants haven't actually been charged with terrorism. Instead, the indictment lists arson, conspiracy, use of a destructive device and destruction of an energy facility. But court documents repeatedly refer to the crimes as acts of terrorism, and federal prosecutors have sought sentence "enhancements" earmarked for offenses involving terrorism.

So why include eco-saboteurs under the banner of terrorism? For one, it may be easier to bag an "eco-terrorist" than a member of an al Qaeda cell. And as the definition of "terror" grows, the zeal to guard against it may spread to other crimes.

"If you can do [warrantless surveillance] for these guys, who can't you do it for?" Parry says. "If this is part of the war on terror, then I think this is a much broader war than anyone ever imagined."