Mimesis Law
21 July 2019

A Reach Too Far: Using A Secret FISA Warrant For Child Porn

Apr. 11, 2016 (Mimesis Law) — We’re the government, we are here to help and we don’t have to tell you why. Utilizing a secret warrant under the Foreign Intelligence Surveillance Act (FISA), FBI agents entered and searched Keith Gartenlaub’s home claiming he engaged in espionage and was providing national secrets to the Chinese. Finding no such evidence, Gartenlaub instead was arrested and charged with possessing child pornography.

While fellow Fault Lines contributor Mario Machado covered the details of Gartenlaub’s case and his defenses, the erosion of individual rights in the name of our war on terror, our war on drugs, or even national security, reflected by this abuse of a FISA warrant demands special condemnation. In the name of national security, the court allowed the government to hide behind their secret warrant, leaving the accused no method of challenging or confronting the government’s assertions. Yet, the very basis of our system is supposed to be the ability to confront and challenge.

The Constitution protects property owners not by giving them license to engage the police in a debate over the basis for the warrant, but by interposing, ex ante, the deliberate, impartial judgment of a judicial officer . . . between the citizen and the police . . . and by providing, ex post, a right to suppress evidence improperly obtained and a cause of action for damages.

United States v. Grubbs.

But, with secrecy behind the warrant and no meaningful review, the accused is left with no grounds to debate the basis for the warrant because it is not subject to defense or public review.

How can this be? Under the guise of national security, apparently we have traded our rights.

In Gartenlaub’s case, the government made sealed filings, so neither the defense nor the public was able to see them. Based on the secret filings, the judge held that the government had shown probable cause that the house to be searched belonged to “an agent of a foreign power” or a spy.

Never mind that no evidence was found to substantiate the government’s assertion that Gartenlaub was a spy. Never mind that the government’s assertions cannot be challenged. Never mind that the government’s assertions simply didn’t bear out. It’s all good. “We are from the government and we had every right to search his home.”

Had the government found evidence of espionage, no doubt, we would all be grateful. But that is not the case. Instead, failing that endeavor, the government turned to trading intelligence information into criminal evidence.

When law enforcement lawfully obtains evidence of a serious crime, in this case a crime against children, we will pursue further investigation of that crime.

And there’s the rub. Once the warrant issued, there was virtually no means by which Gartenlaub could challenge the basis for the warrant. Of course, the court found the pornography material “obtained pursuant to FISA was lawfully acquired” and did not violate the defendant’s Fourth Amendment rights. Additionally, after ex parte pre-trial briefings between the court and government, the judge found:

 [T]here is no indication of any false statements having been included in the FISA materials.

Surely the government would not have proven any false statements in their private discussions with the court. Perhaps had the defense had an opportunity to review or challenge the basis for the warrant, the court might have found false statements. Yet, we will never know as the defense was unable to review the evidence or otherwise challenge it. It’s disturbing that the accused was unable to obtain even basic information on how the information was obtained and why the warrant was issued.

“We’ve always cherished the right to confront and cross-examine our accusers and examine the evidence that’s used as the basis for a search of our homes,” said Mark J. Werksman, Gartenlaub’s attorney. “And to be told, ‘We went in. We had good reasons. We’re not going to tell you why. Trust us,’ is alarming. Especially when the case becomes a run-of-the-mill criminal case.”

In the name of national security, the government’s secrecy may be warranted. Had Gartenlaub been prosecuted for treason or some other espionage-related act, the government could stand on its secrecy, in the name of national security. But when it comes to routine criminal accusations, the government is not supposed to act in secret. The government’s evidence is supposed to be disclosed and challenged. The accused does not have to simply trust the government to get it right.

The motion to suppress is the most important ex post protection available to citizens. The motion to suppress is vital, because it can lead to the suppression of unconstitutionally seized evidence. Once evidence is suppressed, the government’s case could become impossible or significantly more difficult to prove.

381 Search Warrants Directed to Facebook, Inc. v New York County Dist. Attorney’s Off.

How does the citizen accused exercise his ex post protection if he cannot review or challenge the warrant? At what point do we say if the government wants to rely on national security then proceed on matters of national security? Failing that, the government should be required to fully disclose its evidence in routine criminal prosecutions, including the basis for any search that revealed incriminating evidence which the government seeks to introduce against the accused. How else does the accused challenge the government? After all, it is his constitutional right to challenge the government’s evidence.

2 Comments on this post.

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  • David Woycechowsky
    11 April 2016 at 10:00 am - Reply

    The most disturbing part is that these secret warrants give the government the opportunity to plant evidence. One sneak and peak warrant to plant the contraband (at the main residence and the beach house) and another warrant to find it later. Is that what happened here? We have no way of knowing. I mean, there was a time when it was inconceivable that the government’s own anthrax would be mailed to Tom Brokaw or that the government would start a war based on a lie.

  • JoAnne Musick
    11 April 2016 at 3:27 pm - Reply

    Sadly, as you said David, we will never know! This is exactly why the government is not supposed to operate in secret. No checks and balances.