September 01, 2006

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

August 30
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.


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