Report Reveals Government Using Foreign Spying Exemptions for Routine Domestic Criminal Investigations & Making Too Many Mistakes Along the Way
Years ago, Congress provided the executive branch with very particular and somewhat unlimited surveillance powers under the Foreign Intelligence Surveillance Act, or FISA, in order to enable them to track down foreign spies in the United States. FISA allows the government to ask the Foreign Intelligence Surveillance Court for approval to wiretap people to obtain this intelligence information, and while normally the government would have to establish probable cause to set up a wiretap, FISA surveillance is based on relaxed requirements, with fewer restraints.
Today, the government is increasingly using these FISA powers to spy on US citizens in domestic criminal investigations, most of which ultimately involve fraud charges; charges that have nothing to do with national security or foreign intelligence. As a result, the privacy rights of countless Americans who have never been suspected of a crime have been implicated. In fact, the government is increasingly using these powers in basic criminal investigations and circumventing individuals’ Fourth Amendment rights in doing so.
No Defendant Has Ever Reviewed The Government’s Application Against Them
Yet perhaps the most frightening aspect about these charges brought under FISA is the fact that the defendants cannot learn anything about that which has been gathered against them – i.e. the FISA applications – which would not only help them form their defense, but correct important mistakes in those applications, and this raises serious due process concerns. While normally, a defendant would have the right to review information gathered against them in order to challenge any errors or omissions as part of their due process rights, they never get this opportunity with FISA; even if the case brought against them is just an ordinary criminal prosecution. In the 40 years since FISA was enacted, no defendant has ever been able to review the government’s application against them.
Disclosure of Surveillance Orders and Applications Is Necessary
This is, indeed a serious issue: According to the Department of Justice Inspector General‘s recent report on FISA abuses, at least 75 surveillance applications submitted to the FISA court contained serious misstatements and omissions of material facts. As a result, there is no question that disclosure is necessary in order to determine whether factual claims in the government’s FISA applications are accurate.
If You’ve Been Charged with A Crime by The Government, You Need the Best in Legal Representation
It is critical that defendants have the right to review any evidence gathered against them, including what was used that allowed for any surveillance. This is an integral part of ensuring that Americans’ rights are protected.
If you are being charged with a crime, including fraud, contact our New Jersey criminal defense attorneys at the office of Phillip J. Murphy today to find out how we can help.