Eye on ELF: Were Eco-Radicals Illegally Wire-tapped?

Kera Abraham

On Aug. 22, federal judge Ann Aiken demanded to know whether the government used National Security Agency (NSA) surveillance to indict three eco-sabotage defendants. Just a week earlier, a federal judge in Detroit had ruled NSA surveillance illegal on the grounds that it violates the Fourth Amendment freedom from unreasonable search and seizure. If it's found that warrantless wiretapping was used to indict the eco-tage defendants, the entire case could be thrown out.

With the high-profile prosecution of 14 radical environmentalists for a slew of eco-sabotage acts across the West between 1996 and 2001, the federal government broadened the definition of "terrorist" to include members of the Earth Liberation Front and Animal Liberation Front, monkeywrenchers who like to set wild horses free and burn SUVs in defense of the planet. Although the eco-tage defendants haven't been charged with terrorism per se, prosecutors' frequent use of the label has given them access to counter-terrorism tools such as the Joint Terrorism Task Force, "enhanced" sentences and gobs of taxpayer money.
It's a perplexing juxtaposition, the linking of relatively angsty, environmentally-motivated sabotage — namely, a string of arsons that harmed no living being but caused millions of dollars in property damage — with murderous, Osama-style acts of terrorism. The latter threat has given the FBI a $1.2 billion annual domestic counter-terrorism budget and expanded powers to tap American citizens' phones and read their emails without warrants. But rather than apprehending real domestic terrorists such as Mohammad Atta, the FBI has produced a dozen-odd disgruntled green anarchists. Which raises the question: Should constitutionally dubious counter-terrorism tools be used on domestic dissidents?

Judge Aiken's ruling stems from a joint discovery motion made by defense attorneys last March, asking the government to hand over all information related to the indictments of Daniel McGowan, Darren Thurston and Jonathan Paul — including any information obtained by NSA surveillance.

Government prosecutors responded in early August, claiming that they had been diligent in handing over the discovery records — some 28,000 pages of documents, 71 CDs (likely recordings made by snitches with wires), four DVDs and three videotapes. But they hedged the request for information obtained by NSA surveillance.

"[T]he government can state with certainty that no information or material in the possession of the prosecution team in this case was obtained under the Foreign Intelligence Surveillance Act (FISA) or by the National Security Agency (NSA)," prosecutors stated.

Those words — "in the possession of the prosecution" — are heavy qualifiers, leaving the defense team to wonder if an agency other than the U.S. Attorney's Office, such as the FBI or the NSA, has used material obtained by illegal surveillance to nab the alleged eco-saboteurs.

The prosecutors admit that even if their leads had sprouted from illegal surveillance, they wouldn't know it. "[T]he government attorneys prosecuting this case do not have the proper clearance or access to obtain FISA and NSA information, so they cannot simply call NSA or FISA-related agencies and confirm that the requested information does not exist," they wrote.

"[T]he court should neither intervene nor order further search for or delivery of materials," the response concluded.

But Judge Aiken disagreed. At an Aug. 22 hearing in Eugene, she told prosecutors that they would need to provide an updated response to the defense's discovery request by Sept. 12, addressing the defense team's question: Was warrantless NSA or FISA surveillance used in this case?

The prosecution balked. "I've been working on this case for 10 years," federal prosecutor Stephen Peifer told Aiken, "and the term FISA has never come up."

"To you," Aiken clarified pointedly.

Defense attorney Amanda Lee, representing Daniel McGowan, said she wasn't surprised that the prosecution was pleading ignorance. "That's to be expected," she said. "The very idea of the NSA program is that very few people know about it."

Lee said that prosecutors can't use material illegally obtained by warrantless wiretapping in court. "But that doesn't mean we aren't entitled to full disclosure of it," she said. "It could have played a role in their investigation, and if so, we need to know that."

Asked if the prosecution has accepted any evidence from the FBI without questioning its source, Peifer replied: "We know the source of everything … but as a local prosecutor, I don't get involved in NSA issues … and so I'm not in a position to answer that question."

Judge Aiken clearly asked prosecutors to find out whether warrantless wiretapping was used to build a case against the defendants. But Peifer wouldn't confirm that, saying only, "She's ordering us to respond to the request that was filed."

Lee doubts that the prosecution will follow Aiken's order in good faith. "I came away with the distinct impression that their plan is to submit further briefing about why they don't have to tell us anything," she said.