Sex Offense Case Used to Further Expand FISA

Editor’s Note: This is an article written by K.S. All views and opinions expressed are those of the author and not necessarily those of #BackSoSoon.

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A remarkable ruling by the 9th Circuit, upholding a child porn conviction in United States v. Gartenlaub (No. 16-50339), is potentially one of the most far reaching and dangerous cases to come out this year. The fact that it seems so commonplace-a 4th Amendment challenge to a search of a porn offender’s computer fails (as usual)-masks the true problem inherent in the case. The use of FISA Court rules is purely domestic criminal cases threatens to completely dismantle the already ram shack 4th Amendment and further unravel due process.

Shrouded in secrecy, few people know that FISA even exists, let alone what it is. Created by the Carter administration, the Foreign Intelligence Security Act made a special brand of court that streamlined applications to wiretap or search suspected foreign agents or spies. Whatever was found was inadmissible in a criminal trial and was only used to expel the “guilty” party from our shores. As a result, there were no meaningful safeguards. Unfortunately, the lack of criminal sanctions associated with FISA did not last long, as five successive administrations have broadened FISA’s scope and powers. The lack of legal protections, of course, removed. What started as, at best, a very dubious system, has become a blatantly unconstitutional Frankenstein monster.

For reasons that have not, and almost certainly never will be, made public, Keith Preston Gartenlaub was supposedly being investigated for something related to FISA. Apparently, nothing foreign related was found, judging by the lack of charges, but child porn was somehow found on his computer. Though this was not the super serious reason the government started with, they had no problem pursuing it and filing charges.

When the defendant’s attorney asked for the information on how this all occurred: what his client was accused of, what reason the Government had to believe was doing this, who was accusing him, etc.-you know, the basics of a 4th Amendment case-he was told no. Such information for a FISA warrant is classified and may not be divulged, even to the parties in the case. This means that the very man on trial for his freedom has no idea what he was originally accused of. Not surprisingly without this information, the 4th Amendment attack on the warrant was doomed. One cannot show errors in documents he may not see.

If the complete lack of any adversarial process, or allowing the defendant a meaningful opportunity to review this evidence, isn’t bad enough, Courts are not even supposed to genuinely question the affidavit. Congress did not want FISA Courts to say no to warrants…ever, and that lack of scrutiny carries over any subsequent criminal charges. The District Court made a point of noting just how lackluster the 4th Amendment was in such proceedings.

Gartenlaub had to take the Court’s word not just that the warrant itself was sufficient, but that it even existed. For all he and his attorney know, the police did an illegal search and seizure and used FISA after the fact to justify it. This is unacceptable, as it is the exact same practice engaged in by the Star Chamber, that numerous Constitutional provisions, including the 4th Amendment, were enacted to prevent.

This case shows the dangers of FISA’s creeping expansion. If a person is accused of any foreign activity, the 4th Amendment no longer applies. The government may illegally search him and he must trust that the Court’s word is valid when they uphold it, because he can’t see the evidence himself. There may have been no complaint at all, or an obviously deficient one. In cases like this, where the only defense may be to attack that deficiency, he is denied due process by not having the information to perfect his claim. Since that information is kept secret, the public cannot provide oversight, and the 6th Amendment likewise loses its bite. Such abuses should not be tolerated.

Many judges are good and fair and will avoid the temptation to fudge the facts, but far too many will not. And even those who faithfully apply the law will provide little check-since the law tells them not to. We should oppose any practice that has such a high risk of abuse, and the idea that Congress, or any legislature, can simply decide due process, or any Constitutional guarantee, is unnecessary or unavailable is simply unacceptable. Officials are tempted to cut corners to punish bad men, and no one is as despised as sex offenders. This then becomes law that affects everyone. Such bad rulings are how our Constitution has become so worthless.

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#BackSoSoon is a blog dedicated to the successful reintegration of sex offenders back into society. Our website is www.backsosoonblog.com and our Corrlinks address is backsosoonblog@gmail.com.