NSA surveillance in the Warsame case?

February 04, 2006

In the weeks after the New York Times reported that the National Security Agency was conducting warrantless surveillance of the international phone calls of U.S. persons alleged to be communicating with suspected terrorists abroad, defense attorneys in several national security and terrorism cases sought information about whether evidence in their cases had been gathered through the NSA’s eavesdropping program. The U.S. vs. Mohammed Abdullah Warsame case – currently underway in federal court in Minneapolis – is one such case.

Warsame is charged with material support for terrorism. Documents related to the case are available at the links at the end of this post.

Peter Erlinder is one of the defense attorneys working on the Warsame case. A previous interview with Peter Erlinder was featured in the 2004 ETS Pictures documentary “Security and the Constitution.”

Interview conducted by Matt Ehling on January 17, 2006

Q: Can you talk about the point at which you became involved in this case?

A: Shortly after Mr. Warsame was sent to New York, I was asked to begin consulting, to help find representation for him in New York, and I’ve been working on the case ever since.

Q: Was this after the point where he had procured his own counsel – after (public defender) Dan Scott had left?

A: Well, he needed a lawyer in New York, and we arranged for him to be represented by Leonard Weinglass in New York, but then the decision was made by the government to send him back to Minnesota – apparently because he didn’t have information about the Moussaoui case, which was the reason he was originally detained. And then he was indicted here on a single count of material support … and since that a second count has been added of telling an untruth to a federal agent. That’s what’s detaining him in Minnesota now.

Q: Can you discuss the particulars of the material support charge?

A: I can’t discuss the particulars of it, but the general allegations are that Mr. Warsame went to Afghanistan … while he was in Afghanistan, he associated with members of Al Qaeda or the Taliban, and he sent funds to Afghanistan after he came back. Some of those are facts that we don’t dispute. The fact that we do dispute is that this had anything to do with terrorism, and certainly there’s no indication that he was involved in any violence, and there is no allegation of that at all.

Q: A procedural matter that might be of interest to people is that since this is a national security case … it’s my understanding that a lot of discovery gets to the defendant – and to the lawyers – in a summary of the original classified information –

A: Yeah, it’s handled in a couple different ways. First, security clearances can be sought by the lawyers involved. The security clearances are applicable in this case. And there’s also a procedure that allows the judge to evaluate the seriousness of the national security claim, and if the judge views it as something of that nature, then the evidence or the information can be limited. That’s done in camera by the judge in a private setting.

Q: So ultimately, the jury in the case may be listening to a summarized form of –

A: Yeah, it’s possible. I think that on the facts in this case, it’s unlikely. There’s very little in the way of allegations that have – in my view – any real national security implications. But, of course, it’s not up to me to decide.

Q: Can you talk a bit about the history of the motions pertaining to the wiretap evidence that might be used in the case?

A: The original motions that were filed … first of all, we know that there was FISA – Foreign Intelligence Surveillance Act – surveillance … which is electronic surveillance authorized by the secret FISA court … the standards for which were lowered significantly, and broadened significantly by the PATRIOT Act. But in addition to that, while that motion was still pending, we learned of the electronic surveillance carried out by the NSA, and raised a request – before the judge – to be informed as to whether NSA surveillance was used in this case. We still haven’t received the information back from the prosecution – that should be coming soon. But of course the New York Times reported today that the Warsame case was one of the cases in which NSA evidence had been used to initiate the investigation.

Q: Was there a particular tip that led you to believe that the NSA may be involved –

A: Well during testimony in the public hearing on suppression of statements – there’s also significant Miranda issues involved in this case – during that hearing, the FBI agent involved said that the investigation had begun based on information they had received from another agency, without specifying what that agency was. And since we know the investigation began somewhere other than a criminal investigation by the FBI, we’re interested in knowing what that agency was, and what that information was. And that’s what we’re waiting to find out.

Q: The challenges that you’re raising to the wiretap evidence – can you talk about those? Are you making a direct, constitutional challenge to FISA itself?

A: Yeah. There are two levels of challenge. One – of course – is that if there’s NSA evidence involved, as the New York Times suggested that there is, then we’d be challenging the electronic surveillance without the FISA order. But in addition to that, we’d be challenging the Constitutionality of FISA itself, because under the Fourth Amendment … because it’s quite clear that the FISA warrants, or orders, don’t meet Fourth Amendment requirements. And the question then is, if they don’t meet Fourth Amendment requirements, whether that evidence can be admitted in court. Now there’s no question that if the President carries out this surveillance for the purpose of foreign intelligence, and uses it for foreign intelligence purposes – we’re not challenging that. But we are challenging whether or not that information can be used in a criminal prosecution, because the Fourth Amendment governs criminal prosecutions. And our assertion is that if the evidence is going to be used in a criminal case, then it has to meet Fourth Amendment standards. And it’s quite common for the government to secure evidence for reasons other than for admitting it into court, and the cure for violations of the Constitutions is refusal to admit it into evidence in court … and so we think that the Supreme Court will eventually have to resolve that question – to what purpose can FISA evidence be used?

Q: Can you talk a little bit about the state of the case law regarding the Constitutionality of FISA?

A: Yeah – there have been no cases that have gotten to the Supreme Court at all. A couple circuit court of appeals cases have upheld the Constitutionality of FISA, but not from the sort of attack that we’re planning to raise. In the FISA system, there’s the secret FISA court that issues warrants, and then there’s a secret FISA appeals court. There’s been one case that went to the FISA appeals court, which was a sua sponte ruling from the FISA warrant court, asking whether or not they had the authority to expand the warrant requirements that the PATRIOT Act provided. And the secret court of appeals said that the trial court did have that authority. But whether or not the Supreme Court would decide that is another question. And it’s a completely separate question as to what happens with that information, if it can be secured by FISA warrants … If it’s used for foreign intelligence purposes, or used in information gathering for things other than criminal prosecution, the Fourth Amendment wouldn’t have anything to say about it. But the Fourth Amendment prohibits the admission of this sort of evidence in criminal proceedings. And we think that that is a significant weakness in the application of FISA.

Q: I want to move briefly to your take on the administration’s arguments about the legality of what they’re doing with the NSA program. Because interestingly enough, the case you touch on – that FISA review case – they rely on that opinion –

A: Well I think the case they relied on was U.S. versus U.S. District Court, I imagine. Which is the case that was decided in 1972 that said that Richard Nixon did not have the authority to carry out electronic NSA eavesdropping of those that he deemed were enemies of the United States. In this case – it was involving a group of anti-war activists – the Supreme Court, in a unanimous opinion, decided insofar as that information had been used in federal court, that it was not admissible. So when the court says that foreign intelligence purposes are authorized, it’s quite right to say that U.S. versus U.S. District Court says that the President has that authority. That opinion does not address the extent of that authority, or the use to which that information can be put. While it is clear that the President can carry out electronic surveillance in a foreign intelligence setting, it’s not clear whether that can be either introduced in court, or that there are no limits at all as to what the President might do. And since this NSA wiretapping has involved apparently citizens, as well as other U.S. persons – people in the United States – the question of whether this is really foreign intelligence in the way the Supreme Court meant it in the 1972 case is a completely open question.

Q: Are there any guideposts that can you can point to … Congress certainly felt that they could fill the vacuum left by U.S. versus U.S. District Court when they regulated the gathering of intelligence information. The administration has argued that they have powers over and above FISA –

A: Well actually, the Supreme Court said that with respect to domestic intelligence that would be admissible in court – that evidence, or that information, is not admissible in court. It was excluded and suppressed under the Fourth Amendment, and the exclusionary rule. After U.S. vs. U.S. District Court was decided in 1972, Congress enacted the FISA Act in 1978, which purported to regulate that power of foreign intelligence information gathering, but to limit it in a way in which the subject of the electronic surveillance had to be an agent of a foreign power. What’s happened is that the PATRIOT Act has expanded that, and now if it’s related to a foreign intelligence purpose … FISA applies. So one, I think, could say, that if Congress had intended for this to be covered, they would have structured the expansion in the PATRIOT Act differently than they did. Because this is outside any claim that it is authorized by FISA. It’s not clear at all that there is Presidential power outside of FISA, and it’s not entirely clear – from at least the Supreme Court – whether FISA itself extends beyond the proper scope of presidential power. We’re in an area where there’s a significant Constitutional issue, that’s simply is a new issue, that comes from an assertion of Presidential power that the country has never seen before. It’s that assertion of unusual executive power that has caused the challenges to come up with respect to the military commissions, the closing of immigration courts, as well as this issue now. So we’re in an era where the bounds of Presidential power are going to be determined for a long time to come.

Q: One last question. In regards to the Warsame trial, you are now waiting for a judge’s ruling regarding the admissibility of wiretap information –

A: We’ve briefed and argued the issue with respect to the Miranda issues, because Mr. Warsame was held for a couple days at a military base, and was never given Miranda warnings, and was videotaped the whole time he was there … he was on video the whole time, although the government says they never made a tape. And they’re prosecuting him for what he said there. So we have some significant issues with that. We also think he was detained and not given his Miranda warnings even before he even left Minneapolis. So there’s Miranda issues, there’s also issues with respect to FISA, because there’s no question that there was some FISA intelligence. The question is whether FISA can be introduced in criminal proceedings. And the third question is whether – in addition to FISA – there’s also the NSA wiretapping that the New York Times told us about. So there are several significant Constitutional challenges in a case where everyone concedes that the individual never did anything violent. And perhaps the biggest problem that Mr. Warsame has is that he didn’t have any information to give about Moussaoui. Had he had information, I suspect that the indictment never would have occurred.

View the indictment here:

View the Rule 5(c)(3) affidavit pertaining to Warsame’s transfer to the Southern District of New York here: