Thursday, September 14, 2006

In re Sealed Case In re Sealed Case

Foreign Intelligence Surveillance Court of Review Opinion: In re: Sealed Case No. 02-001 should be read by anyone opposing the NSA's TSP program. A lot of the case has to do with the difference between international intelligence surveilance and crime prosecution. In particular, right before the conclusion:
The main purpose of ordinary criminal law is twofold: to punish the wrongdoer and to deter other persons in society from embarking on the same course. The government’s concern with respect to foreign intelligence crimes, on the other hand, is overwhelmingly to stop or frustrate the immediate criminal activity. As we discussed in the first section of this opinion, the criminal process is often used as part of an integrated effort to counter the malign efforts of a foreign power. Punishment of the terrorist or espionage agent is really a secondary objective;31 indeed, punishment of a terrorist is often a moot point.
The Court also answered one of my big questions along the way: what about criminal prosecutions based on evidence originally procured under FISA? The answer is first that a significant part of terrorism is criminal, almost by definition. Without committing criminal acts, there would not be an act of terrorism. Thus, for example, the 9/11 hijackers committed, at a minimum: kidnapping, assault with intent to do great bodily harm, first degree murder, and maybe arson. The Court reasoned that if evidence gathered under a FISA warrant were not admissible in prosecuting a crime connected to the terrorism being surveiled, it would gut the FISA statute, whose purpose is partially to prevent such terrorism.

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