Defense Attorneys Plan to Fight NSA Evidence in Drug Cases

Let our journalists help you make sense of the noise: Subscribe to the Mother Jones Daily newsletter and get a recap of news that matters.


Can the DEA get secret tips based on NSA surveillance evidence and then invent new stories about where their evidence came from when the case comes to trial? Yes they can. But now that defense lawyers know about this, they’re going to try and do something about it:

Defense lawyers said that by hiding the existence of the information, the government is violating a defendant’s constitutional right to view potentially exculpatory evidence that suggests witness bias, entrapment or innocence.

“It certainly can’t be that the agents can make up a ‘parallel construction,’ a made-up tale, in court documents, testimony before the grand jury or a judge, without disclosure to a court,” said Jim Wyda, the federal public defender in Maryland, in an email. “This is going to result in a lot of litigation, for a long time.”

….[David Patton, executive director of the Federal Defenders of New York] said information about how an investigation began may be highly relevant in certain cases because it bears on the credibility of government witnesses.

“Informants lie. They lie a lot,” he said. “You can’t competently or fully challenge the basis for a stop or search if the government’s hiding information about the real reason for the stop and search.”

Presumably, Patton is suggesting that once investigators get an NSA tip, they can then go dig up an “informant” willing to recycle the tip, thus giving them probable cause for a warrant. But if the court knew the real source of the tip, jurors might be a little more skeptical of the informant.

Will this get anywhere? Hard to say, since the usual Catch-22 is at work here: How do you know whether to demand NSA evidence if you have no idea whether it was used in your case in the first place? Unfortunately, that’s never bothered the Supreme Court before, which happily tosses out cases when plaintiffs can’t prove they were the subjects of secret surveillance. But maybe this kind of case, which doesn’t involve terrorism or national security, will finally change their minds. Maybe.

IT'S NOT THAT WE'RE SCREWED WITHOUT TRUMP:

"It's that we're screwed with or without him if we can't show the public that what we do matters for the long term," writes Mother Jones CEO Monika Bauerlein as she kicks off our drive to raise $350,000 in donations from readers by July 17.

This is a big one for us. It's our first time asking for an outpouring of support since screams of FAKE NEWS and so much of what Trump stood for made everything we do so visceral. Like most newsrooms, we face incredibly hard budget realities, and it's unnerving needing to raise big money when traffic is down.

So, as we ask you to consider supporting our team's journalism, we thought we'd slow down and check in about where Mother Jones is and where we're going after the chaotic last several years. This comparatively slow moment is also an urgent one for Mother Jones: You can read more in "Slow News Is Good News," and if you're able to, please support our team's hard-hitting journalism and help us reach our big $350,000 goal with a donation today.

payment methods

IT'S NOT THAT WE'RE SCREWED WITHOUT TRUMP:

"It's that we're screwed with or without him if we can't show the public that what we do matters for the long term," writes Mother Jones CEO Monika Bauerlein as she kicks off our drive to raise $350,000 in donations from readers by July 17.

This is a big one for us. So, as we ask you to consider supporting our team's journalism, we thought we'd slow down and check in about where Mother Jones is and where we're going after the chaotic last several years. This comparatively slow moment is also an urgent one for Mother Jones: You can read more in "Slow News Is Good News," and if you're able to, please support our team's hard-hitting journalism and help us reach our big $350,000 goal with a donation today.

payment methods

We Recommend

Latest

Sign up for our free newsletter

Subscribe to the Mother Jones Daily to have our top stories delivered directly to your inbox.

Get our award-winning magazine

Save big on a full year of investigations, ideas, and insights.

Subscribe

Support our journalism

Help Mother Jones' reporters dig deep with a tax-deductible donation.

Donate