How surveillance nabs more than spies and terrorists
The case against Nassif Sami Daher and Kamel Mohammad Rammal, two Michigan men accused of food stamp fraud, hardly seemed exceptional. But the tool that agents used to investigate them was extraordinary: a secretive surveillance process intended to identify potential spies and terrorists.
It meant that the men, unlike most criminal defendants, were never shown the evidence authorities used to begin investigating them or the information that the Justice Department presented to obtain the original warrant.
The case is among recent Justice Department prosecutions that relied on the same surveillance powers, known by the acronym FISA, that law enforcement officials acknowledge were misused in the Russia investigation. Those errors have prompted a reckoning inside the FBI and debate in Congress about new privacy safeguards. The attention given to FISA has also cast a spotlight on cases such as the Michigan one, where surveillance tools used to investigate foreign intelligence threats end up leading to prosecutions for commonplace, domestic crimes.
The department says it can’t turn a blind eye to crimes it uncovers when scrutinizing someone for national security purposes, even if those offenses weren’t the initial basis of the investigation. In recent years, inquiries that began with FISA warrants have yielded charges including child pornography and bank and wire fraud.
Current and former officials say just because a FISA warrant produces charges other than national security ones doesn’t mean the target is no longer considered a national security threat. Sometimes, particularly when disrupting a terrorism plot, prosecutors may charge other crimes they find evidence of for fear of tipping the target’s conspirators to the investigation’s actual purpose.
But critics say building routine cases on evidence derived from FISA warrants undermines constitutional protections against unreasonable searches. And if the original surveillance application is riddled with errors or omissions, they say, any resulting prosecution is tainted. Though some judges have raised concerns, no court has prohibited the practice, and the Supreme Court has never directly confronted the specific issue.
One prominent case concerns a former Boeing engineer, Keith Gartenlaub, who was targeted with a FISA warrant because agents suspected him of having supplied the designs of a C-17 transport plane to China. Agents using that warrant to search his computer files said they found images of child pornography. Prosecutors charged him with that but never publicly accused him of spying for China, something he adamantly denies.
He was convicted on the child pornography counts and recently released after nearly two years in custody, though he says the images weren’t his and were on an old computer multiple people who came in and out of his California beach house had access to.
“FISA has become a way to circumvent due process in the legal system,” Gartenlaub said. “Anybody in my situation cannot defend themselves because you can’t see anything.”
A San Francisco-based federal appeals court upheld his conviction. But it also said a prosecution for “completely unrelated crimes discovered as a result of rummaging” through a computer “comes perilously close to the exact abuses against which the Fourth Amendment was designed to protect.”