In response to one of the Freedom of Information Act lawsuits I am fighting with The New York Times’ lawyer David McCraw and our annual First Amendment Fellow, Ian MacDougal, the government has turned over a May 2005 memorandum by Patrick Rowan, who was then a top national-security prosecutor in the Justice Department’s Criminal Division. This memo is about the government’s discovery obligations arising from the Stellarwind warrantless surveillance and bulk metadata program. One of the inspector general reports about Stellarwind that we liberated through previous FOIA litigation had a section about the drafting and contents of this memo, so I FOIA’d for it. (I’ve put that section of the IG report into the same Document Cloud file posted below.)
Rowan’s memo is fairly heavily redacted. (I’m sure we’ll challenge some of the redaction markings at a later stage of the lawsuit.) It’s a little hard to tell what’s going on as a result, but it looks like the thrust was about a scenario in which the Justice Department is prosecuting a terrorism case and the National Security Agency has, via Stellarwind, an intercepted conversation that might help his defense. Does the government have to turn it over? Of course most prosecutors didn’t even know Stellarwind existed at that point, so the matter turned in part on whether and when they had an obligation to ask the intelligence community to search its files generally just in case, etc. It looks like Rowan’s memo did not so much reach definitive conclusions as identify issues that would have to be addressed if DOJ came up with some kind of process for dealing with terrorism cases that might have secret surveillance evidence arguably subject to so-called “Brady” disclosure — the constitutional requirement that prosecutors turn over information in the government’s possession that could be helpful to the defense. Since this was described in the inspector general report already, I’m not sure there is a news story here. But I’ll put it out there for fellow surveillance nerds.
Notably, it does not look like Rowan, at least in these unredacted sections, was addressing the issue that arose in 2013 within the Justice Department regarding its Brady obligations and the FISA Amendments Act program that descended from Stellarwind. The 2013 fight was instead about whether DOJ had to notify defendants that they were facing evidence derived from FISA Amendments Act warrantless surveillance, meaning they had standing to challenge the legality of the underlying surveillance through a motion to suppress that evidence.
As an aside: Neither the IG report nor the memo have, in their unredacted sections, an explanation about why Rowan would be looking into the topic in the spring of 2005, but my guess is that the question occurred to them because of the accidental provisioning to lawyers representing al-Haramain, a defunct Oregon-based charity accused of funneling money to terrorists in Chechnya, a document containing copies of conversations between a leader of the charity and his attorneys apparently picked up (it was later alleged) via Stellarwind. Later in 2004 the FBI had demanded those records back, and in February 2005 Pete Seda, an officer in the charity, was indicted.
Of course, in December 2005, my future colleagues at the Times, Jim Risen and Eric Lichtblau, published their famous article disclosing the warrantless wiretapping component of Stellarwind and the Bush administration acknowledged it. In the al-Haramain matter, Seda had later tried on appeal to say evidence obtained via a search warrant should be suppressed because the investigation derived from Stellarwind, but the Ninth Circuit didn’t buy it. Separately,back in March 2006, al-Haramain’s lawyers filed a lawsuit challenging the program and citing that record they had been shown in 2004 as giving them standing, but the judiciary wouldn’t let them use it. They later filed a different case over that surveillance and won at the district court level, but lost on appeal.
[I revised this post a bit after first posting it, adding the reference to Pete Seda, and reordering it to make it flow a little more coherently.]