I believe SM called FISA an extremely limited tool. Maybe not. This WSJ aritcle shows otherwise. I highlighted some key points. I'm not saying this guy is a saint, nor that he's innocent. But reading this is chilling.
Volatile Formula
How Patriot Act
Helped Convict Man
In Baby-Food Ring
Mr. Jammal Faces 10 Years
After Terror-Probe Tapes
Are Used in Criminal Trial
A 14-Minute Rant Against U.S.
By JOHN D. MCKINNON
April 4, 2006; Page A1
Three months before the Sept. 11, 2001, attacks, police in Tempe, Ariz., began investigating information from Wal-Mart Stores Inc. suggesting that a local grocery wholesaler named Samih Jammal was part of an organized ring stealing baby formula from Wal-Mart stores and trucks.
The investigation proceeded uneventfully until shortly after 9/11 when it was turned over to a joint local and federal terrorism task force. Phoenix police, in a written report later provided to Mr. Jammal as part of his prosecution, said they had "confirmed" that he "had significant connections to terrorist organizations, including al Qaeda." At some point after that -- prosecutors won't say precisely when -- authorities got a warrant to tap Mr. Jammal's phone and bug his office.
It wasn't an ordinary warrant, the sort routinely authorized by judges in response to applications from police and prosecutors who want to eavesdrop to catch crooks. It was a national-security warrant authorized by the 1978 Foreign Intelligence Surveillance Act, giving authorities much more leeway, and giving wiretap targets fewer rights.
Mr. Jammal, a 36-year-old U.S. citizen born in Lebanon, was never charged with any offense related to terrorism. Yet evidence collected in the FISA eavesdropping played a role in his conviction last April on federal charges focused on fencing stolen baby formula, for which he was sentenced to 10 years in prison.
His case sits on the fine line between the government's responsibility to go all-out to prevent terrorism and its duty to protect the constitutional rights of American citizens accused of crimes. It's a line that has blurred considerably since 9/11 and the 2001 passage of the Patriot Act. It allows authorities to use FISA wiretaps authorized by special courts not only to gather foreign intelligence but to investigate domestic crimes.
Mr. Jammal is appealing, contending that FISA evidence used against him was illegally obtained and crippled his defense. He says the charges against him were trumped up by a government determined to show progress in the war against terror. "It's baby formula of mass destruction here," he said at one pretrial hearing.
With an ordinary warrant for electronic surveillance, authorities must show probable cause that the target committed a crime and limit eavesdropping to conversations about crimes. They must also eventually notify those who were bugged (even if they aren't accused of a crime) and must give defendants complete access to the warrant application, court orders and any actual recordings.
To get a FISA warrant, in contrast, authorities need to persuade a federal judge that there is probable cause that the target is an agent of a foreign power such as a terrorist organization. For U.S. citizens, prosecutors also must show that some crime might be involved. Armed with such a warrant, authorities can eavesdrop on any conversation, regardless of whether it involves a crime. They can withhold from defendants the basis for issuing the warrant, hindering legal challenges to the FISA evidence. And they can restrict defendants' access to the classified transcripts and tapes, which makes it harder for the defense to parry the government's charges or mount its own case.
The FISA warrant in the Jammal case distinguishes it from the controversial warrantless wiretaps that President Bush authorized the National Security Agency to conduct in pursuit of terrorism.
Constitutional Question
Even with warrants, critics fear defendants' rights to a fair trial will be eroded, as authorities use intelligence-gathering techniques to pursue criminal cases. "If evidence is procured by methods that wouldn't stand up to the Fourth Amendment, the courts are going to have to stop it," said Rep. Jerrold Nadler of New York, top Democrat on the House Judiciary subcommittee on the Constitution. Cases like Mr. Jammal's "should be challenged in court," he said. "That kind of thing shouldn't happen."
Andrew McCarthy, who prosecuted Sheik Omar Abdel Rahman on terror charges in New York, says the old dividing wall between foreign intelligence operations and domestic criminal investigations doesn't make sense in the fight against terrorism. "They usually commit an array of garden-variety crime in the course of trying to conduct terrorism operations," [Thus everything is fair game-Ed] says Mr. McCarthy, now a senior fellow at the Foundation for the Defense of Democracies, a Washington-based group that studies national security issues. That means investigating crimes and gathering intelligence through plea bargains and other techniques can be an important tool.
Paul Charlton, the U.S. attorney for Arizona whose office brought the case against Mr. Jammal, says in an interview that existing procedures properly balance the rights of defendants with the government's need to maintain secrecy to protect national security. He notes that, as in all FISA cases, a federal judge approved the initial application for the Jammal warrant privately. Prosecutors were "scrupulous" about avoiding suggestions at trial that Mr. Jammal was linked to terrorism, he adds, trying to ensure he got a fair trial.
Prior to passage of the Patriot Act, court interpretations required that the "primary" purpose of a FISA warrant had to be gathering foreign intelligence. The Patriot Act, passed in October 2001, broadened the rules so that intelligence gathering need only be a "significant" purpose of wiretapping. Evidence obtained under FISA warrants has been used in a handful of cases involving charges not directly related to terrorism, including at least one immigration proceeding.
Mr. Jammal's case shows how much the legal environment changes when FISA wiretaps enter the picture in criminal cases. His first two court-appointed lawyers stepped down in part because the secret tapes required them to get security clearance. Even with such clearance, however, they wouldn't be able to discuss the tapes with their client. His third lawyer, who did get clearance, was able to review only translated summaries, not transcripts, of selected wiretapped conversations. At trial, the government played the jury a recording made under the FISA warrant that proved damaging to Mr. Jammal: a rambling 14-minute diatribe in which he rails against the U.S. government in Arabic, and talks about fleeing to Lebanon if officials came after him for unpaid taxes.
The case against Mr. Jammal began in June 2001 when Wal-Mart investigators, frustrated by a rash of baby-formula thefts, gave Tempe police detective Tom O'Brien information about a recent attempted theft in Midland, Texas. For reasons that aren't clear, that led to a police stakeout outside Mr. Jammal's business, located in a warehouse complex in the Phoenix suburb of Tempe. Checks of license plates revealed people with shoplifting records showing up to do business with Mr. Jammal.
Sent to U.S. for College
Mr. Jammal grew up in Lebanon and Kuwait. His father owned fruit and vegetable export firms, a farm, a small phone company and a school, according to Mr. Jammal. The family was prosperous enough to send Mr. Jammal to the U.S. in 1988 to study at West Virginia's Marshall University, named after the nation's first chief justice, John Marshall. Wiry and athletic, Mr. Jammal played for a while on the school's soccer team. The family businesses suffered in the early 1990s, and Mr. Jammal began working odd jobs to put himself through school, according to Mr. Jammal's wife, Gretchen, who grew up in Ohio and whom he met while attending Marshall. After college, Mr. Jammal gravitated toward the business of selling baby-formula on the advice of a friend, and moved to Arizona starting in 1994 to live near a cousin and savor the warmer weather.
Mr. Jammal joined a number of other entrepreneurs -- some of Middle Eastern origin -- who were buying up large quantities of formula at big chain stores, which often sold it as a loss leader. The brokers then sold to wholesalers who, in turn, resold to smaller retailers, who often served low-income families participating in federal food-aid programs. None of this is illegal, although some manufacturers raised concerns about the practice. Taking baby formula out of the original packages and repackaging for resale can be a crime, however. In 1998, Mr. Jammal pleaded guilty to a single charge of improper repackaging of baby formula. He got three years' probation and a $1,000 fine.
Big retailers and formula manufacturers sought to choke off the gray market in baby formula -- for instance, by limiting the amount of formula that could be purchased off-the-shelf at one time. Still, Mr. Jammal's business, Jamal Trading Co., thrived. He says he took advantage of loss leaders at big-box stores and also distributed cereals, juices, diapers and other grocery items. He opened several small retail stores in Arizona. In May 2003, unaware that he had been secretly indicted, he moved his family into a $550,000 suburban home in Mesa, Ariz., where he kept a dozen sheep and goats.
Meanwhile, federal authorities say they got interested in Mr. Jammal in October 2001 when they happened to overhear him on a Drug Enforcement Agency wiretap of Osamah Yacoub, an immigrant from Jerusalem who was living in Houston. The two were talking about the baby-formula business, Mr. Charlton, the U.S. attorney said. Mr. Yacoub later pleaded guilty to a charge related to methamphetamine trafficking and cooperated with the government in its prosecution of Mr. Jammal.
Around the same time, according to a Phoenix police affidavit, a confidential informant told authorities that Mr. Jammal was trying to "facilitate the release of a non-U.S. citizen who was in federal custody" -- Malek Seif -- and smuggle him to Mexico. Mr. Seif later pleaded guilty to falsifying immigration and Social Security records. Through one of his appeal lawyers, Mr. Jammal said the story is not true. "Someone made it up," said the lawyer, Scott MacPherson.
A 9/11 Hijacker at Mosque
Federal authorities won't say exactly what led to Mr. Jammal's case being turned over to the terrorism task force. Mr. Jammal suspects one factor was that he and Mr. Seif attended a Tempe mosque where one of the 9/11 hijackers worshipped briefly -- Hani Hanjour, a Saudi Arabian who was aboard the American Airlines jet that crashed into the Pentagon. Mr. Jammal, who says he has no sympathies with terrorism, says he expressed skepticism about Mr. Hanjour's culpability when Federal Bureau of Investigation agents came to the mosque shortly after 9/11.
Beginning in December 2001, authorities devised a sting aimed at Mr. Jammal and his associates. Mead Johnson, a unit of Bristol-Myers Squibb Co. and maker of the Enfamil brand, gave police posing as middlemen baby formula to sell to Jamal Trading Co., representing it as stolen. Mr. Jammal didn't buy formula directly in the sting, and typically insisted that associates get signed statements attesting that any formula they bought wasn't stolen.
But police did sell 1,400 cases from the back of a Wal-Mart truck to Mr. Jammal's partner in several businesses, an Egyptian-born businessman named Tamer Swailem, in May 2002. Testifying against Mr. Jammal, Mr. Swailem said he expressed misgivings to Mr. Jammal about buying the formula in a cellphone conversation. "It didn't feel right....[but] finally we decided just to go ahead and have him [the agent] sign the paper," Mr. Swailem said. Mr. Jammal, who didn't testify at this trial, says in an interview that he told Mr. Swailem to "get the hell out" if he believed the formula in the truck was stolen.
In March 2003, Mr. Jammal was indicted secretly. Although the government refuses to say when it tapped Mr. Jammal's phones and bugged his office under the FISA warrant, summaries of about 20 conversations introduced in criminal proceedings against Mr. Jammal date from May and June 2003.
Clifford Fishman, a Catholic University law professor who has studied wiretap laws, says using FISA-authorized wiretaps to bolster an already pending criminal case "would be a clear misuse of the law." A spokeswoman for Mr. Charlton, the prosecutor, said that the "basis for the FISA intercept was unrelated to [Mr. Jammal's] involvement in organized retail theft," adding that it was conducted by a separate investigative team. She said officials can't reveal reasons for seeking the FISA warrant.
Mr. Jammal was arrested in July 2003, and charged with eight felony counts including interstate transportation of stolen property. The government now says that of the 27 defendants in the case, 22 were arrested; 18 pleaded guilty and four of them so far have been deported, while others are pending deportation; and four others including Mr. Jammal were convicted at trial.
Federal prosecutors used declassified conversations recorded under the FISA warrants to argue successfully that he should be jailed awaiting trial. They said his expressed interest in running for the Lebanese parliament proved that he had no strong ties to the U.S.
As Mr. Jammal's trial approached, the FISA-authorized wiretaps also posed difficulties for his court-appointed lawyer, Michael Reeves. The government insisted that Mr. Reeves obtain security clearance to examine classified evidence in the case and agree not to talk about the evidence with anyone, even his client. Mr. Reeves's doubts deepened when he got a look at the security-clearance application. Under penalty of perjury, it asked detailed information "like 'Have you ever missed a mortgage payment?' " Mr. Reeves recalls. "It made me nervous."
Ashcroft Weighed In
While Mr. Reeves pondered the matter, he asked the court to order the government either to reveal the basis for issuing the FISA warrant so he could challenge its legality or bar the evidence altogether. The government countered with an affidavit from then-Attorney General John Ashcroft who said telling defense lawyers why the FISA warrant was issued "would harm the national security." [And that was that-Ed]The federal trial judge, Frederick J. Martone, sided with the government.
Judge Martone allowed Mr. Reeves to withdraw and appointed Michael Smith of Mesa to take his place. But he, too, eventually pulled out, arguing that serving as an effective advocate for Mr. Jammal meant sharing the FISA evidence with his client -- something that would expose Mr. Smith to prosecution.
In October 2004, Judge Martone named Robert Kavanagh, a former Phoenix police officer, to represent Mr. Jammal. Mr. Jammal says Mr. Kavanagh inherited from the previous lawyers only a few CD's -- apparently a small portion of the surveillance videos that were made outside his client's warehouse -- plus a largely inaudible tape recording of one of the FISA conversations. With time running out and no more delays possible before the trial, Mr. Kavanagh, who had obtained a security clearance, reviewed classified summaries of some wiretapped conversations, prepared by FBI translators and agents. But he says he was unable to review many conversations.
The government was free to offer any declassified FISA-obtained evidence in its case against Mr. Jammal, and the defense also could use that material. Federal rules require prosecutors to turn over any evidence that might help the defense. Government lawyers didn't go through all the tapes, many of which recorded conversations in Arabic, but "reviewed all translated summaries of the FISA intercepts and found no exculpatory evidence," the U.S. attorney says.
At one point during the trial, Judge Martone questioned how the government could fulfill its obligation to turn over material favorable to the defense. "There isn't any lawyer who's making this judgment," the judge complained during one conference with lawyers, a transcript shows. But he allowed the government to use FISA-gathered evidence anyhow.
Seeking Help From Tapes
Mr. Jammal insists a review of the voluminous, classified FISA evidence would show that he warned would-be sellers that he would not accept stolen property [But we'll never know-Ed]. He also says that the tapes could have helped undercut the testimony of former associates who agreed to plea bargains and testified against him. Mr. Charlton, the U.S. attorney, counters that seven witnesses testified to Mr. Jammal's guilt. The government introduced evidence, for example, that Mr. Jammal was told by an associate that at least one supplier was stealing. Prosecutors also argued that Mr. Jammal should have known from the prices he was paying that he was buying stolen goods.
Over defense objections, the prosecution played for the jury a conversation recorded under the FISA warrant -- Mr. Jammal's 14-minute rant from June 26, 2003, about his sense that the government was after him, even though he didn't know he'd already been indicted [The Feds get to pick and choose evidence now-Ed].
"I'm trying to establish a business in Lebanon, because I know 80% to 90% that the day will come when the American government is going to come and ask me for taxes," he said, according to a translation presented in court. "OK, that's why, when that day comes, I'll tell them, 'F- you!' Then take everything, I'll pick up everything and go to Lebanon."
Jurors took six hours to convict Mr. Jammal and other defendants on most of the charges. A few days before his sentencing hearing in October, Mr. Jammal fired off a 43-page letter to civil-rights groups, hoping to generate interest in his appeal, and copied Judge Martone. "I fail to see how my conversation concerning the baby formula business could qualify as 'foreign intelligence,' " he wrote.
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