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News :: International
How U.S. Government Can use NSA Spy-Wiretaps against Citizens in Court
15 Feb 2008
* Dan Scott
* 14 Feb 2008
STOP! CONGRESS GIVING “RETROACTIVE IMMUNITY” to TELECOM INDUSTRY.
Attorney General Ashcroft's intentions to use illegal-wiretaps against ordinary Citizens, going back decades: not only against potential terrorists.
It is not surprising the Telecom Industry wants “Retroactive Immunity” from at least forty law suits after they helped government spy on Americans’ personal phone calls, faxes and emails? But Not so obvious or discussed by major media is what happens to NSA’s millions of illegally collected emails, faxes and phone call information that belong to U.S. Citizens? Will that information be deleted or copied? Or Used In Court against Americans?
Depending on the legal scheme the U.S. Government devises to let the phone companies off the hook for spying on its Citizens, could set NSA free—to share its “illegally collected wiretap information” with local, state and federal police in order to initiate almost any kind of criminal investigation.
Determining what NSA electronic surveillance can be used by police or introduced into court by the Government, may be the next battle Americans have to fight.
Previously prosecutors were not allowed access to the Justice Department’s “intelligence files” for domestic criminal prosecutions. In 2003 a court ruling lowered that barrier, allowing prosecutors to review old surveillance. In 2003, Attorney General John Ashcroft asked government prosecutors to review thousands of old intelligence files including wiretaps to retrieve information prosecutors could use in “ordinary criminal prosecutions.”
It is problematic Law enforcement agencies will want to use NSA’s old illegal wiretap evidence and other surveillance to go back perhaps decades to arrest Americans and/or civilly forfeit their homes, inheritances and business using only a "preponderance of evidence" under Title 18 of the United States Code. The Patriot Act specifically mentions provisions passed in Rep. Henry Hyde’s bill HR 1658 "The Civil Asset Forfeiture Reform Act of 2000." HR 1658 included a "retroactive asset forfeiture provision" that applies retroactively to assets already subject to government forfeiture, meaning "property already tainted by crime" provided “the property” was already part of or later connected to a criminal investigation in progress" when HR.1658 passed.
In 2000 after HR1658 passed the “old statute of limitations” died that gave government “five years” to seize property from the actual date a “property” was involved in crime. Police now have five-years to seize property from “whenever police claim” they learned a “property” was made subject to civil asset forfeiture. There are over 200 U.S. laws and violations that can subject property to civil asset forfeiture.
Most property and business owners that defend their assets against Government Civil Forfeiture claim an “innocent owner defense.” This defense can become a criminal prosecution trap for both guilty and innocent property owners. Any fresh denial to the government when questioned about committing a crime “even when you did not do it” can “involuntarily waive” your right to assert in your defense—the “Criminal Statute of Limitations” has passed for prosecution. Any fresh denial of guild, even 30 years after a crime was committed may allow Government prosecutors to use old and new evidence, including information discovered during a Civil Asset Forfeiture Proceeding to launch criminal a prosecution. For that reason many innocent property and business owners are reluctant to defend their property and businesses from Government Civil Asset Forfeiture. Re: waiving Criminal Statute of Limitations: see USC18, Sec.1001, James Brogan V. United States. N0.96-1579.
Imagine NSA sharing its illegal-domestic surveillance information with countless police agencies that are dependent on forfeiting Citizens’ property to pay their department’s operating costs. Police can too easily take an innocent person’s hastily written email or phone call out of context to allege a crime was committed. Imagine Police using the Patriot Act’s low standard of proof “a preponderance of evidence” to judge NSA illegal domestic wiretap information, perhaps to go back before 2000 to civilly seize a Citizen's home, business or other property. No conviction is required for the U.S. Government to civilly forfeit a Citizen’s home or business.
Under the Patriot Act, witnesses can be kept secret while being paid part of the assets they cause to be forfeited.
See below June 2003 (AP) article regarding Attorney General Ashcroft's intentions to use illegal-wiretaps against ordinary Citizens, going back decades: not only against potential terrorists. See AP article at:
"U.S. reviewing old, secret surveillance files in terrorism investigations"
Ted Bridis, The Associated Press 2003-06-04
Jun 4, 7:10 PM (ET) 2003
By TED BRIDIS
WASHINGTON (AP) - Government prosecutors are reviewing years worth of sensitive telephone and e-mail wiretaps and results from secret searches to decide whether they can file criminal charges against suspected terrorists in the United States.
Senior prosecutors from across the country met Wednesday at the Justice Department with Attorney General John Ashcroft, who ordered the review. They said the examination of more than 4,500 intelligence files…
Complete AP article at: www.securityfocus.com/news/5452
NSA data mining is legal, necessary, Chertoff says
By Morton Kondracke
Wednesday January 25, 2006
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"I think it's important to point out," Homeland Security Secretary Michael Chertoff told me in an interview, "that there's no evidence that this is a program designed to achieve political ends or do something nefarious."
He was talking about the National Security Agency's warrantless "domestic spying" program, and I couldn't agree with him more. Despite the alarms sounded by the American Civil Liberties Union, former Vice President Al Gore and various members of Congress, "there hasn't even been a hint" that the program is targeted at domestic dissidents or innocent bystanders, Chertoff said. It's designed to find and stop terrorists.
"If you go back to the post-Sept. 11 analyses and the 9/11 Commission, the whole message was that we were inadequately sensitive to the need to identify the dots and connect them," he said.
"Now, what we're trying to do is gather as many dots as we can, figure out which are the ones that have to be connected and we're getting them connected," he said.
While refusing to discuss how the highly classified program works, Chertoff made it pretty clear that it involves "data-mining" -- collecting vast amounts of international communications data, running it through computers to spot key words and honing in on potential terrorists.
A former prosecutor, federal judge and head of the Justice Department's criminal division, he convincingly defended the program's legal basis and intelligence value.
I asked him why the Bush administration can't comply with the 1978 Foreign Intelligence Surveillance Act (FISA), which allows the government to conduct "emergency" wiretaps for 72 hours.
"It's hard to talk about classified stuff," he said, "but suffice it to say that if you have a large volume of data, a large number of (phone) numbers you're intercepting, the typical model for any kind of warrant requires you to establish probable cause (that one party is a foreign agent) on an individual number."
FISA warrant applications are inches thick, he said, and "if you're trying to sift through an enormous amount of data very quickly, I think it would be impractical." He said that getting an ordinary FISA warrant is "a voluminous, time-consuming process" and "if you're culling through literally thousands of phone numbers ... you could wind up with a huge problem managing the amount of paper you'd have to generate."
What I understood Chertoff to be saying is that when data-mining produces evidence of a terrorist contact, the government will then seek a FISA warrant to actually tap the person's phones or "undertake other kinds of activity in order to disrupt something."
As legal authority for the program, Chertoff cited a 2002 decision of the FISA Court of Review, which is one level down from the U.S. Supreme Court, holding that a president has "inherent (constitutional) authority to conduct warrantless searches to obtain foreign intelligence information."
"We take it for granted that the president does have that authority," the court said, "and, assuming it is so, FISA could not encroach on the president's constitutional powers."
Chertoff also said that the courts have given wide latitude to the government in controlling and monitoring activity across international borders. All reports on the NSA activity assert that it's limited to international communications.
What about the assertion in The New York Times on Tuesday that virtually all of the thousands of NSA leads sent to the FBI in the months after the Sept. 11, 2001, terrorist attacks led to dead ends or innocent persons?
Chertoff said, "You're going to bat well below .100 any time you do intelligence gathering. That's true even in conventional law enforcement. If you get even a small percentage of things to pan out, you've succeeded to a significant degree.
"What I can tell you is this," Chertoff said. "The technique of electronic surveillance, which is gathering information about who calls whom or intercepting actual conversation, is the most significant tool in the war against terrorism.
"If we didn't have it, I'm quite sure we'd have disrupted fewer attacks and identified fewer (terrorists)."
Buried at the bottom of the Times story were a number of cases where actual terrorist operations had been disrupted, apparently as a result of NSA eavesdropping, including efforts to smuggle a missile launcher into the United States, to cut Brooklyn Bridge cables with a blowtorch and an attempt to blow up a fertilizer bomb in London.
"I would rather move quickly and remove somebody when we've got a legal basis to do so, charge them with a lesser offense (than terrorism) or deport them, than wait till I have a big case with a big press conference. If we wait until people get operational, it's a failure. Somebody could get killed."
The idea that someone could bring down the Brooklyn Bridge with a blowtorch has been ridiculed, but Chertoff said, "People kid about the shoe bomber, but had the bomb gone off and 150 people were killed, I don't think a lot of families would be laughing about it."
Civil libertarians seem to fear that the government is collecting huge quantities of data that it can later use politically, but Chertoff said, "I don't think anybody has an interest in accumulating a lot of information. We can barely manage the stuff we care about for avoiding terrorism.
"I can actually make the case that the more intelligence we've got, the more we actually protect civil liberties. In a world without intelligence, where we don't have a good idea where the threats are, it means searching people, screening names, barriers and checkpoints, questioning people when they get on an airplane."
To me, the bottom line of the NSA spying case is this: Congress should investigate whether President Bush has authority to conduct anti-terrorist data-mining. And, if he doesn't, Congress should give it to him -- with legislative oversight.
As Chertoff told me, "the name of the game here is trying to figure out, with all the billions of pieces of data that float around the world, what data do you need to focus on? What is the stuff you need to worry about?
"If you don't use all the tools of gathering these kinds of leads, then you're leaving very valuable tools on the table." And, if and when another 9/11 occurs, the first question that will be asked is: Why?
Morton Kondracke is executive editor of Roll Call, the newspaper of Capitol Hill.
Copyright 2006, Roll Call Newspaper
This work is in the public domain