[Ppnews] Warrantless wiretaps? - Terror-fying The Greens

Political Prisoner News ppnews at freedomarchives.org
Thu Aug 31 13:58:51 EDT 2006

Terror-fying The Greens

Did investigators use post-9/11 warrantless 
wiretaps to bust accused eco-saboteurs?

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."

Originally Published on 8/30/2006


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