The sixth amendment to the US constitution guarantees defendants in criminal cases the right to confront their accusers and to know the evidence that is being used against them. Various pieces of federal legislation extend similar rights to people who face restrictions as a result of government proceedings. The use of surveillance information obtained by the NSA without warrants is being called into question under the provisions of such laws.
Debate Brews Over Disclosing Warrantless Spying
Obama administration lawyers have been debating whether the Treasury Department must inform the people or groups it lists as foreign terrorists when it relies on warrantless surveillance as the basis for the designation, according to officials familiar with the deliberations.
Intelligence officials are said to oppose being more forthcoming about who has been subjected to surveillance, especially in cases involving noncitizens abroad — who do not have Fourth Amendment privacy rights — because such information would tip them off that the National Security Agency had intercepted their communications.
But a provision in the Foreign Intelligence Surveillance Act, or FISA, requires the government to disclose when it uses information from eavesdropping in any “proceeding” against people. In 2008, Congress made the N.S.A.’s warrantless surveillance program a part of FISA, but the full implications of applying its disclosure provision to that program were overlooked.
Outside specialists said the same part of the law may apply to other government decisions that relied on such intelligence, including adding names to the “no fly” list and deciding whether to approve visas and licenses that require a security screening.
It appears that the DOJ had been ignoring the requirement of the FISA law for criminal defendants and others until the Snowden revelations hit the fan. They have recently begun notifying criminal defendants when some of the evidence being used against them was obtained by warrantless surveillance. There are challenges being made to the constitutionality of such practices.
The issue of disclosure in civil and administrative proceedings is under debate. The Treasury Dept. has the power to place individuals, groups and corporations on a list of parties who are restricted. Such designation freezes any assets in the US and prohibits Americans from conducting business with them. Such charges as terrorism, drug trafficking and money laundering are grounds for taking such action. No public hearings are held and notification is simply issued without warning. The evidence used for such actions is considered secret. So far the Obama administration has not been willing to extend the FISA disclosure requirement beyond specific criminal proceedings.
As mentioned above this issue extends beyond the Treasury proceedings to other matters such as the no fly list. The general posture of the Obama administration has been to maximize the power and reach of the security state when faced with a choice between that and the constitutional rights of American citizens.