Fruit of the poisonous tree

‘FRUIT OF THE POISONOUS TREE’….The principal problem facing the Bush administration over its warrantless-search program is political — the president’s critics are outraged, there’s bi-partisan support for congressional hearings, and op-ed pages are filled with commentaries about Bush intentionally circumventing the rule of law.

It’s not, however, the administration’s only problem. There’s also issue about using illegally-obtained information — the ever-popular “fruit of the poisonous tree” — in criminal cases against suspected terrorists.

Defense lawyers in some of the country’s biggest terrorism cases say they plan to bring legal challenges to determine whether the National Security Agency used illegal wiretaps against several dozen Muslim men tied to Al Qaeda.

The lawyers said in interviews that they wanted to learn whether the men were monitored by the agency and, if so, whether the government withheld critical information or misled judges and defense lawyers about how and why the men were singled out. […]

“If I’m a defense attorney,” one prosecutor said, “the first thing I’m going to say in court is, ‘This was an illegal wiretap.’ “

This is a multi-faceted problem for the administration. In pending cases, defense attorneys will demand information on how evidence was gathered against their clients. In instances in which the administration was already successful, many of which were plea bargains, attorneys will be anxious to reopen cases. One lawyer even raised the prospect of a civil case against the president directly.

For that matter, the controversy surrounding Bush’s surveillance program — now on Day 13 — is still producing new revelations. UPI and the Seattle Post-Intelligencer reported that the administration initially sought warrants from the FISA court, but when judges balked at some of the president’s more sweeping requests, the administration decided to stop asking.

Specifically, the FISA Court modified 179 of the 5,645 requests for surveillance since 2001, and rejected or deferred at least six requests for warrants during 2003 and 2004. In other words, the court that had approved practically every request for a warrant for decades found that the Bush administration wanted to go too far. It was then that the president suddenly decided that judicial oversight wasn’t so important after all.

Asked about these reports yesterday, White House spokesperson Trent Duffy declined comment. I can’t say I blame him.