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LOCAL Commentary :: Elections & Legislation

Should TELECOMS pay “Your Legal Defense Costs” to fight NSA Illegal-Wiretap Evidence?

Perhaps the only thing that has stopped government from broadly using “illegal telecom assisted wiretap evidence” against ordinary Citizens is that Telecoms don’t have immunity from being sued by charged criminal and civil asset forfeiture defendants.
by, Dan Scott

President Bush wants Congress to give the Telecom Industry “Retroactive Immunity” for crimes the Telecom Industry might have committed against U.S. Citizens while helping government—illegally spy on Americans’ personal phone calls, faxes and emails?

Once Congress gives the Telecom Industry “Retroactive Immunity” what happens to NSA’s millions of illegally collected emails, faxes and phone call information that belong to U.S. Citizens?

Previously prosecutors were not allowed access to the Justice Department’s “intelligence files” for domestic criminal prosecutions. In 2003 a court ruling lowered that barrier, allowing prosecutors to review old surveillance. In 2003, Attorney General John Ashcroft asked government prosecutors to review thousands of old intelligence files including wiretaps to retrieve information prosecutors could use in “ordinary criminal prosecutions.”
(See www.securityfocus.com/news/5452 WASHINGTON (AP) - "U.S. reviewing old, secret surveillance files in terrorism investigations." “4,500 files.” By, Ted Bridis, The Associated Press 2003-06-04

Perhaps the only thing that has stopped government from broadly using “illegal telecom assisted wiretap evidence” against ordinary Citizens is that Telecoms don’t have immunity from being sued by charged criminal and civil asset forfeiture defendants. The recent U.S. Senate bill that passed without House passage would give the Telecom Industry “Retroactive Immunity” against persons arrested or charged by the government with “illegal wiretap evidence. Currently no bill introduced by the U.S. Senate or House clearly state what illegal electronic surveillance can or can not be used by police or introduced into court by Government. Police may be free to sift though millions of illegally seized electronic communications to make that decision.

Any “telecom immunity bill” passed by Congress should include laws that force TELECOMS to pay “a defendant’s legal defense costs” when a defendant is forced to fight illegal NSA or other illegal government wiretap evidence in court—if the Telecom broke the law assisting government illegal wiretaps.

Depending on the kind of “Immunity” Congress gives the Telecom Industry for spying on its Citizens, could set NSA/FBI free—to share that “illegally collected wiretap information” with local, state and federal police in order to initiate almost any kind of criminal investigation.

It is problematic Law enforcement agencies will want to use NSA/FBI illegal wiretap evidence and other surveillance to go back perhaps decades to arrest Americans and/or civilly forfeit their homes, inheritances and business using only a "preponderance of civil evidence" under Title 18 of the United States Code.

The Patriot Act specifically mentions provisions passed in Rep. Henry Hyde’s bill HR 1658 "The Civil Asset Forfeiture Reform Act of 2000." HR 1658 included a "retroactive asset forfeiture provision" that applies retroactively to “assets already subject to government forfeiture”, meaning "property already tainted by crime" provided “that property” was already part of or later connected to a criminal investigation in progress" when HR.1658 passed.

In 2000 after HR1658 passed the “old statute of limitations” died that gave government “five years” to seize property from the actual date a “property” was involved in crime. Police now have five-years to seize property from “whenever police claim” they learned a “property” was made subject to civil asset forfeiture. There are over 200 U.S. laws and violations that can subject property to civil asset forfeiture. For example a misrepresentation on a federally insured mortgage loan application can cause the federal the forfeiture of your home.

Most property and business owners that defend their assets against Government Civil Forfeiture claim an “innocent owner defense.” This defense can become a criminal prosecution trap for both guilty and innocent property owners. Any fresh denial to the government when questioned about committing a crime “even when you did not do it” can “involuntarily waive” your right to assert in your defense—that the “Criminal Statute of Limitations” has passed for prosecution. Any fresh denial of guild, even 30 years after a crime was committed may allow Government prosecutors to use old and new evidence, including information discovered during a Civil Asset Forfeiture Proceeding to launch a criminal prosecution. For that reason many innocent property and business owners are reluctant to defend their property and businesses from Government Civil Asset Forfeiture. Re: waiving Criminal Statute of Limitations: see USC18, Sec.1001, James Brogan V. United States. N0.96-1579.

Imagine NSA sharing its illegal-domestic surveillance information with countless police agencies that are increasingly dependent on forfeiting Citizens’ property to pay their department’s operating costs. Police can too easily take an innocent person’s hastily written email or phone call out of context to allege a crime was committed. Imagine Police using the Patriot Act’s low standard of proof “a civil preponderance of evidence” to judge NSA illegal domestic wiretap information, perhaps to go back before 2000 to civilly seize a Citizen's home, business or other property. No conviction is required for U.S. Government to civilly forfeit a Citizen’s home or business.

Under the Patriot Act, witnesses can be kept secret while being paid part of the assets they cause to be forfeited.

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