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There's a noteworthy development in an otherwise parochial legal case out of Chicago. Among the evidence against two men charged with illegally lobbying government officials on behalf of Zimbabwe is some apparently collected by the NSA under the Foreign Intelligence Surveillance Act.

The revelation of that evidence almost certainly wouldn't have happened two weeks ago. On July 30, the Justice Department indicated that it would inform defendants in criminal cases when the evidence against them included information obtained under FISA. It didn't do so entirely willingly. When a lawsuit against the NSA's surveillance tools arrived at the Supreme Court earlier this year, the court allowed the surveillance to continue in part because of an assurance from the solicitor general that the information was already being provided. The court's decision hinged on standing, arguing that the ACLU couldn't demonstrate that it had been surveilled. Only those who knew they were being watched under the FISA could sue the government to stop it; Solicitor General Donald Verrilli assured the court that those people were being told when they were being watched.

But it wasn't happening, even though it should have been, which the Justice Department acknowledged in a court filing last week. The Wall Street Journal reported:

A lengthy footnote [Ed. - Page 3, footnote 1 in link above] in the filing is the closest prosecutors come to acknowledging their about-face. In the footnote, prosecutors said that their prior filing might have been "construed to assert" that they didn't need to disclose when a case was based on surveillance approved by the court. But "that is not the government's position," the prosecutors wrote.

The case of Chicago political activists Prince Asiel Ben Israel and Gregory Turner seems like an unlikely early example of that notification. For one thing, the case appears to be unrelated to terrorism, the ostensible rationale for the expansions of the FISA over the past ten years that have bolstered NSA surveillance. The Huffington Post describes the charges the men face.

The complaint says the men met with [Zimbabwe president Robert] Mugabe, Reserve Bank of Zimbabwe Gov. Gideon Gono and other officials "multiple times" in the U.S. and Africa, and allegedly agreed to lobby U.S. federal and state officials on Zimbabwe's behalf in exchange for the promised payments, which the defendants apparently weren't able to collect in full. ...

The complaint alleges that the defendants violated the International Emergency Economic Powers Act. The violation carries a maximum penalty of 20 years in prison and a $1 million fine.

ABC 7 News in Chicago noticed the unusual stipulation included in the government's filing.

Electronic surveillance or physical searches were conducted in the case against Prince Asiel Ben Israel and co-defendant C. Gregory Turner. While there is nothing to indicate a terror threat by any of those charged or involved in the case, the use of FISA in a case such as this points to the expanded use of a widely-criticized government law enforcement tactic.

It's not clear from the government's statement what part of the FISA was used to collect that evidence or, as noted above, what evidence was collected. While numerous government agencies have requested NSA surveillance data, the relationship between the Justice Department and the NSA is codified. The agency can't surveil Americans (under the law), but it can collect communication between an American and a non-American and pass it to the FBI if there's evidence a crime was committed.

That FISA evidence was used in this case is, of course, precisely the reason that the court insisted that fact be known. Evaluating how the government uses the authority it has been given can't be judged if that use occurs entirely in the dark. As more instances of the use of FISA evidence are made public, it will become easier to figure out exactly how far NSA surveillance extends.

Photo: Zimbabwe president Robert Mugabe with former Iranian prime minister Mahmoud Ahmadinejad. (AP)

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