Challenging NSA and FISA

Local political filmmaker Matt Ehling just started a blog. In his first post, he interviews attorney Peter Erlinder, a defense lawyer in the case of U.S. vs. Mohammed Abdullah Warsame about the legality of admitting evidence obtained from NSA surveillance or FISA warrants in a domestic criminal case. It's an interesting read.

Q: The challenges that you’re raising to the wiretap evidence - can you talk about those? Are you making a direct, constitutional challenge to FISA itself?

A: Yeah. There are two levels of challenge. One - of course - is that if there’s NSA evidence involved, as the New York Times suggested that there is, then we’d be challenging the electronic surveillance without the FISA order. But in addition to that, we’d be challenging the Constitutionality of FISA itself, because under the Fourth Amendment ... because it’s quite clear that the FISA warrants, or orders, don’t meet Fourth Amendment requirements. And the question then is, if they don’t meet Fourth Amendment requirements, whether that evidence can be admitted in court. Now there’s no question that if the President carries out this surveillance for the purpose of foreign intelligence, and uses it for foreign intelligence purposes - we’re not challenging that. But we are challenging whether or not that information can be used in a criminal prosecution, because the Fourth Amendment governs criminal prosecutions. And our assertion is that if the evidence is going to be used in a criminal case, then it has to meet Fourth Amendment standards.