from the regular-crime;-special-warrant dept
Ellen Nakashima of the Washington Post has the disturbing story of former Boeing employee Keith Gartenlaub, whose home was searched for evidence of his alleged spying for the Chinese. Specifically, the FBI was looking for documents about the military's C-17 transport plane. Instead, FBI agents came across something else.
[S]ince the search in January 2014, no spy or hacking charges have been brought against him.Questions have been raised about the evidence obtained during the search.
Instead, seven months later, he was charged with the possession and receipt of child pornography. He has denied the charges, but a jury convicted him in December.
In Gartenlaub’s case, the defense unsuccessfully argued that he could not be linked to identical copies of child pornography videos found on four hard drives in his house. Two of the hard drives had been in a computer that was kept at a beach house where numerous people had access to it, Gartenlaub said.The defense had more difficulty than usual in challenging the evidence. The search wasn't performed with a standard FBI warrant, but instead -- due to its supposed national security implications -- with a warrant issued by the FISA court. That the FBI found child pornography instead is unfortunate, but that fact shouldn't nullify the original warrant or result in the suppression of the evidence, at least according to the DOJ.
Jeff Fischbach, a forensic technologist for the defense, said there is no evidence that the child pornography was ever seen by anyone who used the computer, much less Gartenlaub.
The government’s own forensic expert, Bruce W. Pixley, said he could not find any evidence of the material being downloaded onto any of the computers, the defense noted. That means it had to have been copied onto the computer — but by whom is unknown.
While the DOJ is correct in the fact that the FBI wasn't going to call off the search after it uncovered evidence of other wrongdoing, its defense of the way the evidence was obtained is disingenuous. Unlike a regular warrant, a FISA warrant is almost completely unchallengeable. The entire process is ex parte, including the submission of evidence obtained -- even if the evidence has nothing to do with national security.
In Gartenlaub's case, every submission by the government was done under seal. His legal representation had no access to the government's presentation of evidence. The possession of child porn is certainly nothing the government takes lightly, but once the focus of the investigation shifted away from alleged espionage, the process likewise should have changed. At the very least, the FBI should have had a new warrant issued, signed by a regular magistrate judge -- one that would have allowed the defense to examine the affidavit and the results of the search.
JoAnne Musick of Fault Lines points out just how much the FISA Court's involvement screwed Gartenlaub.
Once the warrant issued, there was virtually no means by which Gartenlaub could challenge the basis for the warrant. Of course, the court found the pornography material “obtained pursuant to FISA was lawfully acquired” and did not violate the defendant’s Fourth Amendment rights. Additionally, after ex parte pre-trial briefings between the court and government, the judge found:The ability to challenge presented evidence is a key part of the justice system. Wrongs committed by the government during the search for evidence can only be righted through this process. But the use of a FISA warrant deprives the accused of that potential remedy. When it became apparent the investigation was no longer focused on matters of national security, the FBI should have unsealed documents and turned over evidence to Gartenlaub's legal reps. Instead, it chose to keep operating under the pretense it was investigating espionage and availed itself of all the advantages that come with national security-related investigations.
"[T]here is no indication of any false statements having been included in the FISA materials."
Surely the government would not have proven any false statements in their private discussions with the court. Perhaps had the defense had an opportunity to review or challenge the basis for the warrant, the court might have found false statements. Yet, we will never know as the defense was unable to review the evidence or otherwise challenge it. It’s disturbing that the accused was unable to obtain even basic information on how the information was obtained and why the warrant was issued.
Then there's this: even though the FBI had enough evidence of child porn possession to prosecute (successfully) Gartenlaub and nothing in the way of evidence he was involved in spying for the Chinese, it still attempted to leverage what it had obtained to turn Gartenlaub into a government informant.
During his initial appearance in a federal courthouse in Santa Ana, Calif., the prosecutors indicated a willingness to reduce or drop the child pornography charges if he would tell them about the C-17, said Sara Naheedy, Gartenlaub’s attorney at the time.So, not only did the government use its additional national security benefits to keep Gartenlaub from mounting a serious challenge to submitted evidence, but it also used evidence it gathered with an unrelated search to pressure him into admitting he was a spy -- something it had no evidence of at all.