"Eco-terrorists," or victims of warrantless wiretaps?
U.S. District Judge Ann Aiken has asked federal prosecutors to respond to questions about surveillance and, as Lewis & Clark Law School professor John Parry says, "It's going to be embarrassing...for the government if they find out they've used warrantless surveillance."
The government has until Tuesday, September 12, to answer the questions, but they may simply refuse to respond, citing the "state secret privilege" - a tactic Judge Aiken may or may not buy.
If the government does admit that it used warrantless surveillance, the judge can choose to rule on whether the wiretaps, conducted with Bush's approval, violate Fourth Amendment guarantees to freedom from unreasonable searches and seizures.
If the judge rules that federal investigators broke the law, then the resulting evidence could be excluded. Depending on how much evidence was gathered 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.
The Bush administration's warrantless surveillance program was first revealed by the NY Times 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 the environmental group, ELF, has international connections.
The defendants haven't actually been charged with terrorism, but court documents repeatedly refer to the crimes as acts of terrorism, and federal prosecutors have sought sentence "enhancements" usually reserved 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.
As Parry says, "If you can do [warrantless surveillance] for these guys, who can't you do it for? If this is part of the war on terror, then I think this is a much broader war than anyone ever imagined."
Read more at http://www.wweek.com/editorial/3243/7938