A federal judge in Eugene wants to know whether the government used warrantless wiretaps to investigate a group of radical environmentalists charged with committing more than a dozen acts of sabotage in Oregon and the West between 1996 and 2001.
Since indictments were issued last year, six defendants have brokered plea agreements in exchange for testimony, leaving four non-cooperating witnesses headed for trial, three fugitives and one defendant who committed suicide in jail.
The mainstream media paid no attention to U.S. District Judge Ann Aiken's ruling last week telling federal prosecutors to respond to questions about surveillance.
But it's significant for two reasons. First, it makes way for a new challenge to the Bush administration's hotly controversial warrantless surveillance programs. The administration insists that it has the constitutional authority to spy on terrorists without judges' approval; this case would most likely provide the first challenge to that stance involving a domestic "terror" case.
Second, the issue could ultimately unravel the high-profile charges against a group of activists associated with the Earth Liberation Front, which the government has portrayed as one of the most serious "terrorist" threats to domestic tranquility.
"It's going to be embarrassing...for the government if they find out they've used warrantless surveillance," says Lewis & Clark Law School professor John Parry, who specializes in criminal and constitutional law. "They're going to have some explaining to do."
Facing Aiken's Sept. 12 deadline, the government may simply refuse to respond, most likely citing something called the state secret privilege—a tactic Aiken may or may not buy.
If the government does testify that it used warrantless surveillance, the judge will have a chance to rule on the big question: whether the wiretaps, approved with nothing more than the president's OK, violate Fourth Amendment guarantees to freedom from unreasonable searches and seizures.
If the judge rules that investigators' methods broke the law, then the resulting evidence could be excluded. Depending on how much evidence was gathered—directly or indirectly—through the use of warrantless wiretaps or other electronic surveillance, prosecutors may have a hard time continuing their case.
"The entire case could be thrown out," says Lauren Regan, executive director of the Civil Liberties Defense Center in Eugene, which has assisted in the defense.
Assistant U.S. Attorney Stephen Peifer said he could not comment on the case.
The Bush administration's warrantless surveillance program came to light in a New York Times report in December 2005. The paper reported that shortly after Sept. 11, 2001, President Bush gave the go-ahead for federal investigators to eavesdrop, without a warrant from a judge, on Americans' electronic communications with people overseas. The administration is adamant that it has the constitutional authority to snoop on international terrorists—and though the Eugene eco-sabotage case appears to be an entirely domestic matter, investigators have made a point of alleging that ELF has international connections.
Since news of the warrantless wiretaps broke, dozens of civil lawsuits have been filed against the Adminstration, including one by an Oregon-based Islamic charity, decrying the program as a slap at civil liberties. Two weeks ago, a federal district court judge in Detroit issued the first opinion in a civil case declaring the program unconstitutional.
The criminal case in Eugene presents an advantage to the defense not offered in the civil matters: If warrantless surveillance was indeed used, the government, not the defendants, bears the burden of proof. The prosecutors must show that illegal means weren't used to gather evidence.
In motions before Aiken, defense attorneys have asserted that the government's repeated references to terrorism are a strong sign that warrantless surveillance played a role in the investigation.
Last May, a deputy assistant director of the FBI testified before Congress that the ELF and the related Animal Liberation Front represent "one of today's most serious domestic terrorism threats." The "terror" label made investigators' jobs easier in the Oregon case, giving them access to terrorism task forces and interstate warrants.
Of course, the defendants haven't actually been charged with terrorism. Instead, the indictment lists arson, conspiracy, use of a destructive device and destruction of an energy facility. But court documents repeatedly refer to the crimes as acts of terrorism, and federal prosecutors have sought sentence "enhancements" earmarked for offenses involving terrorism.
So why include eco-saboteurs under the banner of terrorism? For one, it may be easier to bag an "eco-terrorist" than a member of an al Qaeda cell. And as the definition of "terror" grows, the zeal to guard against it may spread to other crimes.
"If you can do [warrantless surveillance] for these guys, who can't you do it for?" Parry says. "If this is part of the war on terror, then I think this is a much broader war than anyone ever imagined."