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It's not just the DEA getting surveillance data from the NSA to pursue criminal—i.e. not terrorism—investigations. The NSA is handing over data on criminal activity to the Justice Department as well. That raises serious questions about exactly what NSA analysts are really looking at, "just" the metadata, or the content of communications, as well.
It is unclear whether the referrals have been built upon the content of telephone calls and emails. Administration officials have previously assured Congress that NSA surveillance focuses on so-called metadata and in the main does not delve into the content of individual calls or email messages. [...]
"If the information from surveillance or wiretaps is used by the NSA inconsistently with the warrant or other permission from the FISA court, certainly there would be a violation of law," said Sen. Richard Blumenthal, D-Conn., a former U.S. attorney and state attorney general. "Unfortunately we have no access to the FISA court opinions or orders that may authorize this activity because they're largely secret. This presents yet another clear and powerful reason that we need more transparency in the FISA court."
The number of cases turned over to the Justice Department by the NSA is just one more of those things that the agency—neither agency—shares with Congress. As with the DEA program using secret surveillance data, this sharing of information by the NSA with Justice is allowed under the Patriot Act. But just as in the DEA program, the problem is its constitutionality.
"The NSA intercepts, whether they are mail covers, metadata or what have you, are in essence general warrants," said Harold Haddon, a prominent criminal defense attorney from Denver. Using information from those warrants as the basis for a criminal prosecution "is a bright-line Fourth Amendment violation," Haddon said, referring to the constitutional protection against unreasonable search and seizure. [...]
"The problem you have is that in many, if not most cases, the NSA doesn't tell DOJ prosecutors where or how they got the information, and won't respond to any discovery requests," said Haddon, the defense attorney. "It's a rare day when you get to find out what the genesis of the ultimate investigation is."
The former Justice Department official agreed: "A defense lawyer can try to follow the bouncing ball to see where the tip came from -- but a prosecutor is not going to acknowledge that it came from intelligence."
Add this to the pile of things we need to find out about the NSA's surveillance, and to the pile of things Congress should have regular access to.
Originally posted to Joan McCarter on Mon Aug 05, 2013 at 12:37 PM PDT.