Wednesday, September 09, 2009
Via Glenn Reynolds, we learn that British prosecutors used NSA intercepts to convict the three jihadis who conspired to blow up those transatlantic flights back in 2006. Orin Kerr no doubt accurately predicts the story will not get the attention it deserves in the mainstream media.
I have a question for these or other experts on criminal procedure: Would American rules of evidence and constitutional jurisprudence have allowed the introduction of these intercepts in a criminal case in our courts? Would the confrontation clause or other requirements of American law make it more risky for the NSA to permit the use of intercepts in our courts?
This story also suggests that the boundary between the "war-fighting" and criminal justice approaches to suppressing Islamist terrorism is not quite so clean cut as we might imagine. The NSA program is manifestly a tool of war, and it seems to have been important to a favorable result in the courtroom.
Please read Bruce Schneier's account on the subject at http://www.schneier.com/blog/archives/2009/09/nsa_intercepts.html . Appearently, a U.S. court issued warrants to obtain the intercepted messages again. This sheds a different light on the matter.
Bruce Schneier quotes Glenn Greenwald. Greenwald asserts that because there were warrants issued in the transatlantic bomb plot, that the intercepted information must have been intercepted with a warrant.
There is a small logic error in his reasoning, but what do I know? I'm only a graduate student in math.