Washington, DC (November 28, 2006) -- “Officials also say that the N.S.A. ... has conducted much larger data-mining operations on vast volumes of communication within the United States to identify possible terror suspects. To accomplish this, the agency has reached agreements with major American telecommunications companies to gain access to some of the country’s biggest ‘switches’ carrying phone and e-mail traffic into and out of the country.” – The New York Times, Jan. 2, 2006
“The Government appears to argue here that, pursuant to the penumbra of Constitutional language in Article II, and particularly because the President is designated Commander in Chief of the Army and Navy, he has been granted the inherent power to violate not only the laws of the Congress but the First and Fourth Amendments of the Constitution, itself.” – American Civil Liberties Union, et al. v. National Security Agency (2006)
After nearly five years of warrantless eavesdropping on Americans’ international communications, the Justice Department Inspector General's office has announced that it has received the necessary clearances to look into what role federal prosecutors have played in the so-called “terrorist surveillance program.” (Letter from I.G. Glenn Fine to Reps. Sensenbrenner and Conyers) Whatever the administration wished to call it, thousands of innocent Americans and legitimate businesses have had, and continue to have, their telephone calls, e-mails and other electronic communications intercepted and analyzed without judicial oversight as required by federal statutes and the Constitution. A federal judge has already ruled that the program itself is unlawful and unconstitutional.
The Inspector General has stated that his investigation will be limited to the Justice Department's controls, use of information, and compliance with governing legal requirements. Part and parcel of that inquiry is the extent to which the National Security Agency’s warrantless surveillance program is used by federal law enforcement to develop evidence in a criminal investigation, in violation of the federal wiretap act and the Foreign Intelligence Surveillance Act. There is also a need to determine the extent to which the Justice Department and federal law enforcement are participating in efforts to datamine innocent Americans’ electronic communications, without probable cause, in violation of the Fourth Amendment.
The National Association of Criminal Defense Lawyers believes that protecting national security does not require that we relinquish personal privacy and the hard won liberties that are essential to preserving our free and democratic society. Foremost among those liberties is the requirement that searches and seizures by law enforcement be checked by the judicial branch. The Founders knew well the consequent tyranny and abuse when British soldiers had unchecked power to search anyone’s home and seize their private papers, letters and diaries. In the 21st Century, “papers and effects,” as the Framers of the Fourth Amendment called our most personal items, include our telephones and phone conversations, our voicemails, our computers and e-mails, our faxes, our wireless calls and text messages, our Google searches, and myriad other communications yet to be invented.
The Inspector General's investigation does not relieve Congress of its duty to thoroughly examine the legality and operational aspects of the NSA program. NACDL, along with nearly 100 other groups, called this month for a full investigation and public hearings before the Intelligence and Judiciary committees in the next Congress. The Inspector General’s findings would be welcome addition to -- but not a substitute for -- this essential legislative oversight.
Martin S. Pinales
National Association of Criminal Defense Lawyers
Nov. 28, 2006
Pattern Cross-Examination for DNA and Biological Evidence: A Trial Strategy Guide
NACDL’s Pattern Cross-Examination for DNA and Biological Evidence will assist criminal defense practitioners in scoring points when cross-examining forensic experts in cases involving DNA and biological evidence. This resource contains thousands of questions that will help defense lawyers cross-examine challenging witnesses without reinventing the wheel with each new case. It includes pattern questions that can be used to dominate prosecution DNA experts and level the playing field at trial.
Cross-Examination of the Analyst in Drug Prosecutions (2nd Ed.) By James M. Shellow
Now in its second edition with some new material, James M. Shellow’s book offers what its title promises: ways of thinking about cross-examining the forensic analysts in drug cases. But the book is so much more than that. It offers a look inside the mind of one of the finest cross-examiners and defense lawyers the United States has produced in the last seventy years. This small book can inspire and direct you in making big changes in the way you defend your clients and think about the entire project of trying any case.
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Drug Cases Resource Materials Collection - CD-ROM
NACDL’s Drug Cases Resource Materials Collection is the sweeping culmination of every single article of written materials ever published from each installment of NACDL's annual "Defending Modern Drug Cases" seminar. Totaling over 12,000 pages, this vast collection includes 12+ years of motions, briefs, reports, outlines, transcripts, case citations, scholarly articles, powerpoints and other written commentaries. This collection provides trial strategies and tactics you can immediately apply to your current cases.
Mental Illness & the Law: Addressing and Litigating Behavioral Health Disorders in Criminal Cases
Whether it is insanity, impairment, a disorder, or adolescent brain development; mental health and intellectual competence issues affect pretrial supervision, trial and sentencing, and your chances of successfully advocating for your impaired client. This training provides ideas and proven solutions to assist you in advocating for your client during trial, whether it be insanity defenses, jury selection, cross of expert witnesses, persuasion, or mitigation at sentencing.
NACDL Communications Department
The National Association of Criminal Defense Lawyers is the preeminent organization advancing the mission of the criminal defense bar to ensure justice and due process for persons accused of crime or wrongdoing. A professional bar association founded in 1958, NACDL's many thousands of direct members in 28 countries – and 90 state, provincial and local affiliate organizations totaling up to 40,000 attorneys – include private criminal defense lawyers, public defenders, military defense counsel, law professors and judges committed to preserving fairness and promoting a rational and humane criminal legal system.