Making Us Less Safe

Judd at Think Progress refers us to an article in today's New York Times which reports that defense attorneys who handle terrorism cases are planning to challenge the admissibility of any evidence gained through illegal wiretaps.

At today's press briefing, White House spokesman Trent Duffy was asked about a story in today's New York Times, which reported that Bush's warrantless domestic spying program could undermine key terrorism prosecutions:

Q The New York Times reports today that there are several legal challenges based on the NSA wiretaps. Are you concerned that these challenges could jeopardize the cases against people you guys have already described as very bad people?

MR. DUFFY: ...[W]e decline to comment on any pending cases, but I don't think it should serve as any surprise that defense attorneys are looking at ways to represent their clients; that's what defense attorneys do.

Duffy's right, criminal defense lawyers are looking for ways that their clients can avoid conviction. And Bush's actions have given them an easy way to do it. The program violated federal criminal law -- the Foreign Intelligence Surveillance Act. As a result, any information collected by the program is inadmissible in court. (This principle is called the exclusionary rule.) If that information is critical to the government's case, a guilty terrorist might be found not guilty.

What's worse, if what the administration says is true, none of this was necessary. If all of the surveillance targeted people associated with al Qaeda, as the administration claims, it would have been easily approved by the FISA court. That process would not have delayed the surveillance since a warrant can be obtained up to 72 hours after the surveillance starts.

The Bush administration says the program is justified because it made us safer. The opposite appears to be true. The program has made us less safe by needlessly complicating the prosecution of terrorist suspects.

The same issue has come up with the use of torture by the U.S. against suspected terrorists. Last month the Justice Department dropped plans to charge Jose Padilla with attempting to use a "dirty bomb" on an American city because much of the evidence to support the charge came from statements given by Al Qaeda officials after they had been tortured.

Over a year earlier, Phillip Carter, a former Army officer who writes on legal and military issues for Slate, had predicted this very scenario:

... Any information gained through torture will almost certainly be excluded from court in any criminal prosecution of the tortured defendant. And, to make matters worse for federal prosecutors, the use of torture to obtain statements may make those statements (and any evidence gathered as a result of those statements) inadmissible in the trials of other defendants as well. Thus, the net effect of torture is to undermine the entire federal law enforcement effort to put terrorists behind bars. With each alleged terrorist we torture, we most likely preclude the possibility of a criminal trial for him, and for any of the confederates he may incriminate.

... [W]e now know that the United States has intentionally used (with the sanction of the highest levels of government) torture tactics to pry open the mind of Khalid Sheik Mohammed, alleged to be one of al-Qaida's top masterminds. According to the Times, "C.I.A. interrogators used graduated levels of force, including a technique known as 'water boarding,' in which a prisoner is strapped down, forcibly pushed under water and made to believe he might drown." Gen. Peter Pace, the vice chairman of the Joint Chiefs of Staff, described such tactics as a violation of the Geneva Conventions. And the FBI has instructed its agents to steer clear of such coercive interrogation methods, for fear that their involvement might compromise testimony in future criminal cases.
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This torture of top al-Qaida leaders may also cause problems for the government were there to be a trial for the alleged "dirty bomber" Jose Padilla. The tip that led to Padilla's initial detention on a material witness warrant in May 2002 came from intensive CIA interrogations of Zubaida, a close associate of Osama Bin Laden. In December 2003, the 2nd Circuit Court of Appeals ordered that Padilla be released from military custody and either charged in federal court or released. However, any prosecution of Padilla could be very problematic for the government, because the case for his guilt rests mostly (if not entirely) on secret interrogations of al-Qaida leaders, which now appear to have involved torture. If a criminal case is ever brought against Padilla, his lawyers are sure to challenge this crucial evidence on a number of grounds, including reliability and the fact that it was procured with torture in a way that "shocks the conscience."

What does the Bush administration hope to gain by identifying and gathering information on suspected terrorists in a manner that only benefit terrorists by making it impossible to prosecute them? Clearly, it's not about keeping Americans safe.