After reading an article in The Guardian newspaper in early June about Snowden’s leaks about NSA phone- and email-collection programs, Dore hit upon the idea that the agency likely possessed cellphone location data for his client.
According to the Guardian and other media outlets, information from Snowden indicates that the NSA has become a sort of vast repository for intercepted communications — including phone-location records.
On June 9, Dore filed his motion in the hopes of finding evidence that would show his client was not in the vicinity of the bank at Lighthouse Point, as the government had alleged.
“The government must be ordered to turn over the records for the two telephones that it attributes to Mr. Brown for the dates which are relevant to this case — the month of July 2010,” Dore’s motion said. “The records for the two telephone numbers are in the government’s possession. The NSA operates under the authority of the United States Department of Defense, an arm of the executive branch of government.”
A day after Dore filed his motion, U.S. District Court Judge Robin Rosenbaum ordered the federal government to respond. On June 19, prosecutors filed a motion denying that the federal government had the location data that Dore sought.
Dore said in an interview on Wednesday that he has since withdrawn the motion because he is confident that Michael Mullaney, chief of the counterterrorism section of the Justice Department’s national security division, who represented that the records did not exist, would not make a misrepresentation to the court.
But his motion stirred the interest of other lawyers.
“I received a lot of contacts from other lawyers who wanted to get the information because, for the same reasons that it’s useful to the government, it’s useful to defense lawyers,” Dore said.
One of the lawyers who contacted Dore was John Steakley in Cobb County, Ga., where he represents a client in a double homicide case.
“I have a double homicide where witnesses called each other upon hearing gunshots,” Steakley said in an e-mail to El Nuevo Herald. “If those calls took place before my client arrived in the area [we have his records], then he couldn’t have done the shooting. I’ve tried to get the records of those phone calls, but the cell companies no longer have the records. If the NSA has been stockpiling the data, I’d like to get it.”
Steakley said on Thursday that he plans to file a motion demanding NSA phone records for those calls.
More lawyers became interested in filing motions after Reuters broke the story on the DEA’s unit to combat drug-trafficking Latin American cartels through a partnership with the NSA and other federal agencies that include the CIA, Homeland Security, the FBI and the Internal Revenue Service (IRS).
The DEA’s Special Operations Division’s practice of feeding tips on suspects to local law enforcement has drawn criticism because the initial source of the information, possibly NSA intercepts of phone data, has not been revealed when cases reach the courts.
According to Reuters, the original tip was concealed from judges, prosecutors and defense attorneys because of the classified nature of the unit. The tip generally was relayed to a state trooper who was told by investigators to search a specific vehicle in which drugs would be found.
In court, investigators would say that the case began with the vehicle search, not the SOD tip. Investigators called the procedure parallel construction.
The subterfuge has upset some legal experts who feel that court cases in which the practice was used have been compromised.
“I have never heard of it before,” Nancy Gertner, a Harvard law professor and former federal judge and defense lawyer, recently told the news show The Takeaway on National Public Radio. “I was a criminal defense lawyer for 24 years and a judge for 17, and I have never heard of this before. And yes, there were cases that began with traffic stops … I never saw anything that smacked of parallel construction.”