The baby formula stealing conviction of a former Marshall University student is a dramatic example of the ease with which law enforcement officials can gather foreign intelligence to investigate domestic crimes.
The Wall Street Journal recently examined how prosecutors used evidence collected from a national security warrant to put 36-year-old U.S. citizen born in Lebanon, Samih Jammal, in jail for 10 years on fencing charges, not terrorism.
Jammal was born to a family whose wealth was amassed in a produce export business and sent him to study at MU in 1988. Described in the WSJ report as "wiry and athletic," Jammal played on the university's soccer team.
Before the attacks of Sept. 11, 2001, Jammal, who had established a grocery wholesale business, was being investigated by the Tempe, Ariz. police for his involvement in an organized ring stealing from Wal-Mart.
After the attack, his case was turned over to a joint local and federal terrorism task force and prosecutors were able to get a national security warrant to tap Jammal's phone and bug his office. The special warrant authorized under the 1978 Foreign Intelligence Surveillance Act (FISA) favors authorities, while providing fewer rights to targets.
Phoenix police, in a written report later provided to Mr. Jammal as part of his prosecution, said they had "confirmed" that he "had significant connections to terrorist organizations, including al Qaeda," the Wall Street Journal article reported.
According to the report, Jammal is appealing his conviction claining the evidence was illegally obtained and hurt his defense.
He says the charges against him were trumped up by a government determined to show progress in the war against terror. "It's baby formula of mass destruction here," he said at one pretrial hearing.
The report indicated it took jurors six hours to convict Jammal and others on stealing formula in April 2005. Before he was sentenced he appealed to civil rights groups to take up his cause.
"I fail to see how my conversation concerning the baby formula business could qualify as 'foreign intelligence,' " he wrote in a 43-page letter, the WSJ reports.
Fearing defendants' rights to a fair trial will be eroded, a ranking congressman from New York believes Jammal's case should be challenged in court.
"If evidence is procured by methods that wouldn't stand up to the Fourth Amendment, the courts are going to have to stop it," said Rep. Jerrold Nadler of New York, top Democrat on the House Judiciary subcommittee on the Constitution. Cases like Mr. Jammal's "should be challenged in court," he said. "That kind of thing shouldn't happen."
On the other hand, Paul Charlton, the U.S. attorney whose office brought the charges against Jammal believes "existing procedures" balance the rights of defendants with the prosecutors need for secrecy to protect national security.
He notes that, as in all FISA cases, a federal judge approved the initial application for the Jammal warrant privately. Prosecutors were "scrupulous" about avoiding suggestions at trial that Mr. Jammal was linked to terrorism, he adds, trying to ensure he got a fair trial.
Courts interpret the purpose of a FISA warrant differently since the enactment of the Patriot Act in October 2001. Before, the "primary" purpose of a FISA warrant had to be gathering foreign intelligence. And since, the rules have changes so that intelligence gathering need only be a "significant" purpose of wiretapping, according to the report.