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Not Disclosed: NSA-Obtained Evidence

by Derek Gilna

The Intercept has revealed that Foreign Intelligence Surveillance Act (“FISA”) evidence is frequently being used to convict people in federal court without disclosing to defendants that such evidence is being relied upon, as required by federal law. “The FBI frequently searches Section 702 databases when it opens national security and domestic criminal ‘assessments,’ precursors to full investigations,” it said recently, and that usage is not always disclosed, as required by the nation’s highest court.

Section 702 of FISA is the provision that specifically “allows the government to obtain the communications of foreigners outside the United States, including foreign terrorist threats,” according to the House Intelligence Committee FAQ sheet. However, Section 702 does not authorize the government to target the communications of any American. According to the Office of the Director of National Intelligence, there are strict guidelines governing the use of Section 702, which “cannot be used to intentionally target any U.S. citizen, or any other U.S. person, or to intentionally target any person known to be in the United States. Section 702 cannot be used to target a person outside the United States if the purpose is to acquire information” from a person inside the U.S.

The United States Supreme Court, in Brady v. Maryland, 373 U.S. 83 (1963), said that the prosecution must turn over all potentially exculpatory evidence to the defendant in a criminal case. However, many observers believe that the National Security Agency (“NSA”) does everything it can to circumvent this requirement.

Tim Cushing, a writer for Techdirt, says, “The NSA has never taken its evidentiary obligations seriously. The agency is supposed to inform the court and defendants if surveillance-derived evidence is being used against them. This just doesn’t happen,” he said. “The NSA encourages parallel construction to obscure the true source of evidence used in court cases.” The NSA, using programs such as “PRISM” and “STELLAR WIND” has the ability to harvest and analyze phone calls, emails, and all other digital metadata. PRISM obtains data from the large tech companies without the necessity of obtaining a warrant.

Thus, the FBI, without effective oversight by a court or any other government agency, is able to present information originally collected by the NSA and present it as its own, without revealing its provenance.

The NSA’s opacity is legendary. In fact, for decades its very existence was denied by the federal government. Nonetheless, it was always supposed to hand over this information. According to journalist Patrick Toomey, “Up until 2013, no criminal defendant received notice of Section 702 surveillance, even though notice is required by statute. Then, after … the New York Times [reported] that the Justice Department had misled the Supreme Court and was evading its notice obligations, the government issued five such notices in criminal cases between October 2013 and April 2014. After that, the notices stopped—and for the last 20 months, crickets.”

Although it appears that most of the individuals affected by these discovery violations were terrorism suspects, including the infamous case of an Uzbekistani suspect, Azlidden Kurbanov, the opportunities for abuse of the NSA programs are more than just theoretical, especially when the government agencies collecting and using the data generally fail to disclose its existence.

Clearly, there is work to be done by defense attorneys, Congress, and the courts to rein in these surveillance abuses, to improve accountability and compliance with Brady, and to ensure that constitutional protections survive their interaction with invasive and highly secretive surveillance techniques. 


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