Dangerous state eavesdropping

Noah Feldman

The US government claims the right to eavesdrop at will on a citizen’s email if he or she is writing to someone who lives abroad. Now it wants to be able to use those emails to convict the person sending them of a crime. That’s what’s happening to Aws Mohammed Younis al-Jayab — and he’s not the only one. The legal basis is the 2008 Amendment Act to the Foreign Intelligence Surveillance Act, which says the government may monitor communications from within the US to foreigners abroad, or vice versa, without first obtaining a warrant to authorise the surveillance.
No court has yet reviewed the law’s constitutionality because until 2013 the government didn’t tell anyone that it had been doing this. The Supreme Court ruled in 2013 that no one had legal standing to challenge the law based merely on the speculation that it might be applied to them. Jayab is different. The government can charge him with a crime only by using evidence gathered from his intercepted emails. So it’s put him on notice that it intends to rely on material collected without a warrant per the FISA. That gives Jayab standing to challenge the law.
The alleged facts of Jayab’s case are telling. The Sacramento, California, resident came to the US as a refugee from Iraq in 2012. According to the government, while living in Arizona and Wisconsin, he emailed with jihadis in Syria about going there to fight. The emails indicated he had been there before. And sure enough, in 2014, Jayab travelled to Turkey and from there crossed into Syria to fight alongside several groups, allegedly including Ansar al-Islam, a Kurdish jihadi group that has since merged with Islamic State.
In theory, Jayab could be charged with material support for terror if it could be proven that he really fought with Ansar al-Islam, a designated terrorist group for purposes of that law. But either the government doesn’t want to charge him with that crime for tactical reasons, or it’s afraid it doesn’t have enough direct evidence to prove it. Instead, the government called Jayab in for an interview with US Citizenship and Immigration Services after his return to the US in 2014. They asked him whether he’d been a member of a rebel group or supported terror. He said no, and claimed to have done nothing more than visit his grandmother in Turkey on the trip.
The government then charged Jayab with the crime of lying to government officials. Its evidence comes from his emails to Syria when he was in the US and responses he received. Obtained under the FISA without a warrant, they are the heart of the government’s case. To be sure, in the light of the Paris and Brussels attacks, the US needs some way to lock up potential jihadi terrorists who may have been trained abroad to commit attacks here. But relying on warrantless wiretapping isn’t it.
There is a reason that warrantless wiretaps usually are inadmissible in court. They count as searches for purposes of the Fourth Amendment. Requiring a warrant before law enforcement is allowed to listen in is a basic element of our modern right to privacy. What’s more, the Constitution doesn’t say that my privacy stops when I am speaking to someone who happens to be outside the US. The founding fathers surely wouldn’t have exempted letters sent from abroad if they were read within the US. The Fourth Amendment provides for the right of “the people” to be free of unreasonable searches and seizures. That need not apply to persons outside the US. But it should apply to everyone who is here, and we shouldn’t lose our privacy rights just because we’re talking across borders.
It’s harder to say with certainty that the government should always be barred from such intercepts when they’re made purely for intelligence purposes. Say the government is listening to the phone of someone in Syria and that person gets a call from the US — the government shouldn’t have to stop listening. But charging a US resident in US court on the basis of warrantless searches of communications while the resident was in the US goes too far. The government should find another way to hold Jayab if he is dangerous, such as charging him with a crime that can be proved without violating his rights — and ours.
— Courtesy: The Japan Times

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