There are, in the physical universe the we occupy, certain things the government needs to show with evidence in order for the government to properly bring a case to the Foreign Intelligence Service Act court, the FISA court. The FISA court is the one that Snowden brought to light, and is where the NSA is granted secret exceptions to the Fourth Amendment. Among other requirements, the government must show the defendant is acting on behalf of a foreign power – and Congress includes under this this requirement “collecting industrial or technological information which, if disclosed to a hostile foreign power, might present a threat to the security of the nation.”
GMO corn seed in the hands of the Chinese government is a threat to the security of the United States. Bear with me here.
In 2011, the FBI became suspicious of certain Chinese who were being too curious about some newly sown corn fields. Before filing U.S. v. Hailong, the government gathered evidence in the form of 29 digital devices (completely copied by remote exploit, I assume), 500,000 unique digital files, more than 100 hours of audio recordings, more than 50 intercepted phone calls, and thousands of pages of physical files. For anyone unfamiliar with the criminal defense process, one of the first major tasks is to challenge the evidence gathered as violative of the rule of law and so suppress illegally gathered evidence. The literal first step of that task is to know how the government came into possession of that evidence.
Various policies, political speeches, Constitutional rules, themes, and the penumbras and emanations of the criminal justice system give weight to the idea that one of the most basic ideals of trials, civil and criminal alike, is transparency. Every piece of paper used in a trial is available to anyone, except for narrow exceptions. When civil parties file for a protective order to keep the evidence filed in court out of the public eye, the requesting party must show why secrecy outweighs transparency by giving specific, articulated reasons for rejecting transparency. When discussing evidence used to convict a defendant, transparency matters because it lends weight to the conviction and sentence. When we remove a person’s ability of self-determination, a full and thorough accounting of the reasons thereto is generally accepted as a Constitutional mandate – no sentence is given without explanation and the ability to appeal.
Except when we deal with FISA. I will quote at length from the opinion denying defendant’s motion for transparency: “Motions to suppress evidence obtained pursuant to FISA are necessarily generalized, speculative, and vague, given the statutory framework. Cf. United States v. Belfield, 692 F.2d 7 Case 4:13-cr-00147-SMR-CFB Document 214 Filed 03/06/15 Page 7 of 12 141, 148 (D.C. Cir. 1982) (“We appreciate the difficulties of appellants’ counsel in this case. They must argue that the determination of legality is so complex that an adversary hearing with full access to relevant materials is necessary. But without access to the relevant materials their claim of complexity can be given no concreteness. It is pure assertion.”); United States v. AbuJihaad, 531 F.Supp.2d 299, 311 (D. Conn. 2008) (“Since defense counsel has not had access to the Government’s submissions they—quite understandably—can only speculate about their contents.”); United States v. Mubayyid, 521 F.Supp.2d 125, 131 (D. Mass. 2007) (“The Court obviously recognizes the difficulty of defendants’ position: because they do not know what statements were made by the affidavit in the FISA applications, they cannot make any kind of a showing that those statements were false. . . . The balance struck under FISA—which is intended to permit the gathering of foreign intelligence under conditions of strict secrecy, while providing for judicial review and other appropriate safeguards—would be substantially undermined if criminal defendants were granted a right of disclosure simply to ensure against the possibility of a Franks violation.”); United States v. Rosen, 447 F.Supp.2d 538, 547 (E.D. Va. 2006) (“Defendants’ necessarily speculative contention that the FISC must have erred when it found probable cause to believe that the targets are agents of a foreign power is without merit.”).
Even Yossarian is speechless at that Catch-22.
Right, so let’s back up and review for a moment. The most secretive court in the nation of which I am aware has been used to indict 7 Chinese nationals for actions stemming from genetically modified corn seeds. The defense then mounted a rather ingenious motion, demanding to know which evidence was gathered under the auspices of the FISA, which generally abrogates Amend. IV as too burdensome for the government, and which evidence was gathered under “normal” procedures, which generally means that NSA-style procedures are unavailable. This motion was ingenious because, instead of the secret review by the Judge presiding over the case (the normal course of a challenge to evidence gathered under the FISA), we now have a public document with the above quote.
Thanks to Mark Weinhardt, Mark Beck, Terry Bird, and Leon Spies, counsel for the defendants, I can hold up this case as an example of the government using the national security laws to prosecute people that the government’s friends don’t like. Remember when the Federal government tried to say fish were regulated under laws meant to regulate financial products? The Supreme Court remembers frying that argument deeper than Grandma’s catfish. However, the Supreme Court has made clear than law enforcement officers can enforce the wrong law, so long as the prosecuting attorney enforcers the correct law – my favorite example of post hoc, ergo proper hoc.
Look, it is physically impossible in the physical universe that we occupy to follow every law of the United States of America, even the Library of Congress and the Wall Street Journal (before News Corp management) say so! But, this is the very problem with the FISA court.
In 1776 Thomas Paine wrote in Common Sense, “The law is king. For as in absolute governments the King is law, so in free countries the law ought to be King; and there ought be no other.” The European Court of Human Rights (You weren’t honestly expecting me to rely upon the Roberts Court to espouse the ideals of human rights, were you?) has said “…the law must be adequately accessible: the citizen must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case … a norm cannot be regarded as a ‘law’ unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail.” Sunday Times v United Kingdom (1979) 2 EHRR 245, 271, §49.
The rule of law is a ideal built up by two centuries of generally defensible actions by all charged with the authorship and application of the laws. Some things make small dents in the law’s respectability, CNN’s profiteering from criminal and civil trials, for example. Some things make large dents in respectability, the continuation of the War on Drugs despite terabytes of evidence that it is counter-productive and could not be better designed to perpetuate the problem it claims to solve. Some things leave holes in the rule of law.
The government using national security laws and institutions passed and created in response to the worst attack upon civilians since Pearl Harbor to prosecute trade secrets theft is a hole in the rule of law. The government denying the means of determining the legality of evidence is a hole in the rule of law.
I’m not suggesting that we stop drone strikes, up >200% in Obama’s administration over Bush Jr’s. ISIL has succeeded in rejecting all progress made since June 8, 632. I’m suggesting the federal government stop trying to cloak their actions with domestic legality by means which have the affect of degrading and destroying the rule of law. Do that to ISIL, not my profession!! We aren’t a signatory to the International Criminal Court – the US government can and does act internationally with impunity. Stop destroying the credibility of the laws. Please, for the sake of my country.
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