The Corner

Sauce for the Gander …

Mark is right: I don’t see how the government avoids disclosing the NSA’s records to the defendant. The fact that it’s a national security program should be irrelevant. I’d also note that, in connection with the related PRISM program, in which the content of conversations is seized, the national intelligence director says the government reserves the right to make use of an American citizen’s intercepted communications if, among other things, they are “evidence of a crime.” We can argue whether that is good policy in connection with this kind of surveillance (which is outside the criminal law’s normal wiretap process), but I don’t see how the government can take the position that we’ll reveal information when it helps our prosecutions but not when it undermines them. 

Presumably, the defense just wants the information in the records; there should be no need to get into how the government came to be in possession of the records, how the records are stored, or what the government needs to do to cull Brown’s records out of the databank. But if the information in the government’s possession is exculpatory, the government must comply with a disclosure demand. There are special procedures for doing this when the information at issue is classified. Bottom line, though, is that whether the government turns over the actual records sought, discloses the information in the records without giving up the records themselves, or enters a stipulation conceding facts the defense would use the information to prove, the law requires that the defendant be in no worse position than he would be in if the information were not classified and if he had obtained it through the regular discorvery process. 

All this, of course, hinges on the records actually being exculpatory. Sometimes defendants make discovery demands simply because they know the government has reasons for not wanting to comply … after all, if the government doesn’t comply, there’s always a chance this will cause any eventual conviction to be reversed on appeal. If the records in this instance turn out not to be exculpatory — i.e., if they don’t really say what Brown contends they would say — the government should not need to disclose (though prosecutors will have to satisfy the judge, ex parte, that the records really are not exculpatory). 

Maybe it’s empathy, but I’d cut the prosecutor some slack for being a bit prissy. He is doing a standard robbery case (don’t know why it’s in federal court — but that’s another issue). He probably doesn’t know anything about the national-security side of the house, he would ordinarily just comply with a straightforward request for exculpatory information readily in his possession (in fact, he probably wouldn’t even have had to be asked), but this information is not in his possession. The NSA has it, and he has to jump through hoops he’s never heard of before to get it — from people who are probably going nuts over exactly what Mark describes: the sudden realization that they are going to be fielding an awful lot of these demands.

One last point: the situation underscores why I don’t think this is a “dragnet” in the sense Mark suggests. There is a difference between storing records that are almost never looked at and scrutinizing records. Here, the defense could not get the records from the service provider because the service provider does not preserve them for very long. A major objective of the NSA database is to store records that would otherwise be destroyed. When new terrorism information is uncovered, it helps a lot, if you’re trying to map terror cells, to be able to trace back in time. (I am not trying to justify the government’s professed need of everyone’s records in order to do this; I’m just addressing why the early destruction of records can be problematic for investigators.) The NSA has been allowed to create this database, but it to has to destroy what it collects within five years. The government is forbidden to do anything other than retain the records in the absence of proving to a judge that it has reasonable, particularized grounds to suspect terrorist activity.

I suppose one way of satisfying people’s concerns would be to require private service providers to retain the records, and then require the government to prove what it now has to prove to the FISA court in order to subpoena the records from the provider. You could do that but (a) it would end up being expensive for the providers because you can bet it would be an unfunded mandate; and (b) it is a lot more hassle than we make police and prosecutors go through to get the same kind of records in an ordinary criminal investigation — because the records are not protected by the Fourth Amendment, investigators in criminal cases routinely subpoena them without having to make any court showing, with little judicial supervision, and with no congressional oversight. As I’ve pointed out a number of times, when it comes to third-party records, the PATRIOT Act process has more civil liberties safeguards than ordinary criminal procedure. 

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