[Ppnews] Eye on ELF: Were eco-radicals illegally wire-tapped?

Political Prisoner News ppnews at freedomarchives.org
Thu Sep 7 18:04:06 EDT 2006


Eugene Weekly 9-7-06

Eye on ELF
Were eco-radicals illegally wire-tapped?

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 
 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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