How national security surveillance nabs more than spies

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Keith Gartenlaub poses for a pictures near his home Wednesday, March 11, 2020, in Irvine, Calif. A former Boeing engineer, Gartenlaub, who was targeted with a FISA warrant because agents suspected him of having provided the designs of a C-17 transport plane to China. (AP Photo/Chris Carlson)

WASHINGTON, D.C. – 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. The Supreme Court has never directly confronted the specific issue.

Patrick Toomey, senior staff attorney with the American Civil Liberties Union national security project, noted that the Fourth Amendment requires the government to describe the type of criminal evidence it's seeking before conducting a search.

“Our view is that the types of broad searches for foreign intelligence information flips the Fourth Amendment on its head when the government repurposes those searches for domestic criminal prosecutions," Toomey said.