Legal experts offered a range of opinions today on whether an accused South Florida bank robber is entitled to any National Security Agency-collected phone records that may exist to help with his defense.
A lawyer for Terrance Brown, who is accused of conspiring to hold up armored trucks delivering cash to banks, asked a federal judge on Sunday to order the government to determine whether the NSA has phone call records that could help exonerate Brown. If the government can’t produce the records, Brown wants the judge to authorize a subpoena to the NSA.
In an order Tuesday, U.S. District Judge Robin Rosenbaum gave the Department of Justice until today to respond, then extended the deadline for a week, until June 19.
The case could be the first of many such efforts by defendants who will argue they are entitled to access whatever meta-data is collected by the agency as part of their defense, say legal experts.
“Prosecutors will be proceeding at their own risk if they don’t do their own searches of the classified material. If it is exculpatory, then the conviction will be in jeopardy,” said defense lawyer Barry Pollack of Miller & Chevalier Chartered, citing the botched 2008 prosecution of Sen. Ted Stevens (R-Alaska). The case against Stevens, now deceased, was dismissed in 2009 after the Justice Department said prosecutors had withheld potential exculpatory evidence from his defense.
But Kirk Ogrosky, a partner at Arnold & Porter LLP and former federal prosecutor, cautioned that the government has plenty of arguments to make against releasing the data. “While this is creative lawyering and poses a great question, I wouldn’t expect it to amount to much.”
In investigating the crimes in South Florida, prosecutors obtained the call-detail records for telephone numbers associated with Brown and five other defendants, for periods when the robbery and attempted robberies of armored Brink’s trucks were occurring.
But the government says it couldn’t locate a month of the records because the service provider, MetroPCS, no longer had them. Noting that the records would be crucial in demonstrating that his client was not involved in one of the alleged robberies that occurred during that missing month, attorney Marshall Dore Louis filed a motion contending that the NSA may have collected the data.
Since the request involves obtaining documents pertaining to the Foreign Intelligence Surveillance Act, the court must provide Attorney General Eric Holder an opportunity to file an affidavit indicating whether disclosure would pose a threat to national security.
The Guardian reported last week that NSA has been collecting records from millions of Verizon customers for seven years. A day later, The Washington Post wrote about the agency’s secret PRISM program, which collects the emails and other electronic data of foreigners who use U.S.-based service providers like Google and Microsoft.
“I suspect we’ll see motions like this popping up in courts throughout the country,” said Jason Weinstein, a former Deputy Assistant Attorney General in the Justice Department’s Criminal Division, who is now a partner at Steptoe & Johnson LLP. “But I don’t expect them to be successful, because notwithstanding the leak, the government will still be able to argue that disclosure or a hearing on the motion would be detrimental to national security.”
In the case at hand, Biz Van Gelder of Dickstein Shapiro LLP said the defendant is likely to run afoul of a provision under the FISA that stipulates the person seeking the disclosure of the document must be “aggrieved.”
“The first thing I look at when I look at this statute is you have to be an ‘aggrieved person’ — somebody who was arrested because of the information NSA collected,” she said. “But it doesn’t mean he can’t try to get it under Brady.”
The so-called “Brady Rule” is the constitutional obligation for the prosecution to disclose any material evidence favorable to the accused.
Pollack argued: “Ultimately, if there is exculpatory material that the government is unwilling to turn over because it’s classified and they’re concerned about the national security ramifications of turning it over that could mean they’ll have to decide whether to dismiss or pursue the case.”
Ogrosky countered that under a 1997 Eleventh Circuit U.S. Court of Appeals decision, which applies in Florida, prosecutors aren’t required to disclose materials from other government agencies.
“Only materials that are ‘in the hands of the governmental investigatory agency closely connected to the prosecutor’ need be disclosed to the defense,” Ogrosky said, citing United States v. Brazel. The question is whether the prosecutor could have received access to such materials if they existed. NSA materials would be inaccessible to line” prosecutors.
Van Gelder suggested defense attorneys would likely try to mimic the “graymail” tactic– preventing prosecution by threatening to disclose government secrets during trial — that has been popular in Classified Information Procedures Act (CIPA) cases.
“I can see in the future people trying to use FISA for graymail the way they did with CIPA,” she said. “But you really have to get through a couple of hurdles and the first hurdle is being aggrieved and the second hurdle is having the Attorney General say that release will not harm state secrets.”
Regardless of the outcome in this case, the floodgates may have opened to similar requests for once-secret data.
“This may be the tip of the iceberg,” Pollack said. “The government only owned up to these particular intelligence gathering programs after they had been leaked so I think it’s safe to assume there are many others out there that have not been disclosed as of yet, and there are probably just as many Edward Snowdens.”
News of Judge Rosenbaum’s order was first reported by David Oscar Markus, author of the Southern District of Florida blog.