Oregon standoff defendants want a federal judge to order prosecutors to disclose whether law enforcement intercepted their emails, phone calls or other electronic communications using national security surveillance methods.

"Defendants are entitled to know how the government monitored their communications and activities and then to test ... whether the government's evidence is derived from that surveillance,'' defense lawyer Amy Baggio wrote in a court filing Wednesday afternoon.

Baggio represents Joseph O'Shaughnessy, one of 26 people accused of conspiring to impede federal officers from doing their work at the Malheur National Wildlife Refuge through intimidation, threats or force. The indictments stem from the armed occupation of the refuge, which began Jan. 2 and lasted 41 days.

Law enforcement officers have labeled the majority of those indicted as "domestic terrorists,'' according to Baggio's review of 24,500 pages of initial discovery evidence shared from the case.

Seventeen of the 26 defendants have a note in the FBI's National Crime Information Center -- a computer database of criminal justice information available to local, state and federal agencies -- that suggests that each is "an individual identified as having possible ties with terrorism,'' Baggio wrote in her motion.

For O'Shaughnessy, the national database includes a section marked "Caution Information'' and reads "Caution CONTACT TERRORIST SCREENING CENTER PHONE,'' according to Baggio's motion.

A law enforcement officer also submitted an application under the All Writs Act to place blocks or controls on five phones used during the final days of the refuge occupation. An officer claimed on the application that he had probable cause to believe the users of the phones had committed a federal crime of terrorism, according to Baggio's motion.

The federal government has used the All Writs Act notably to gain access to password-protected mobile phones in domestic terrorism and drug investigations.

FBI search warrants obtained to secure the refuge in February also described the case as "Domestic Terrorism - Militia Extremism,'' Baggio wrote.

To compel the government to disclose the surveillance information, the defendants must cite some evidence that would suggest that law enforcement monitored electronic communications without a warrant.

Baggio included as exhibits newspaper articles that have revealed that the National Security Agency has gathered "huge amounts of data'' on all Americans. She also cited FBI guidelines that appear to allow the sharing of information seized as "intelligence'' to other law enforcement agencies involved in criminal investigations.

The surveillance under question falls under what's called Executive Order 12333, a Reagan-era directive signed in 1981 that was intended to extend the powers and responsibilities of U.S. intelligence agencies and direct the leaders of federal agencies to co-operate fully with CIA requests for information.

Baggio argues that O'Shaughnessy isn't a terrorist and that any such surveillance of him under the federal executive order would violate his Fourth Amendment right against unlawful search and seizure.

She cited an April article in USA Today, which suggests the FBI has an "internal policy'' against disclosing such surveillance techniques to prosecutors to avoid potential disclosure to criminal defense lawyers.

For that reason, "Mr. O'Shaughnessy requests that the Court direct'' prosecutors to inquire whether the executive order's surveillance program was used against the Malheur standoff defendants and for the FBI and other law enforcement agencies to disclose if they did.

Prosecutors have until May 25 to respond to Baggio's motion. The matter is scheduled to be argued in court in June.

Lewis & Clark Law School professor Tung Yin said such a motion is unusual.

"Before the Edward Snowden disclosures, you would have thought this kind of motion would be a complete shot in the dark,'' Yin said.

Executive Order 12333 covers general national security intelligence, such as the tracking of who is communicating with whom through surveillance of bulk emails or phone calls, Yin said.

The defense motion might be an effort to put prosecutors on notice, he said, that if they don't know if such surveillance occurred in this case "they better go find out'' and make a court record of it should any surprise discoveries emerge later in the case.

In related developments:

-- The government has responded to a defense claim that the alleged conspiracy to take over the refuge doesn't amount to a crime of violence as the indictment alleges.

Defendants are charged with using or carrying a firearm while conspiring to impede federal employees by force, intimidation, or threat. The government argues that the allegation "involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense."

An offense is a "crime of violence" if it includes the use, attempted use or threatened use of physical force against the person or property of another, prosecutors wrote in a court filing.

-- The government also has responded to the defendants' claim that the conspiracy allegation is too vague and should be dismissed.

Assistant U.S. Attorney Ethan Knight said the charge should be easily understood, and cited Merriam-Webster dictionary definitions of each word.

" 'Force,' 'intimidation,' or 'threat' are neither complicated terms nor ones that evade common understanding,'' Knight wrote.

He also countered defense claims that the government is arbitrarily using the conspiracy charge to limit constitutionally protected speech and that the occupiers didn't have adequate notice that their actions could draw a federal prosecution.

"The fact that defendants have not been charged on prior occasions or that they self-identify as peaceful protestors are immaterial to this Court's analysis,'' Knight wrote. "In fact, in this case defendants did receive notice that their conduct was illegal -- they were repeatedly told to leave the Refuge and the surrounding area, but they refused to do so. ''

-- Defendants are asking the court to draw jurors from the entire District of Oregon "to ensure a fair cross section of the community'' for a fair and impartial jury.

Some defendants suggest summoning prospective jurors equally from the Eugene, Medford, Pendleton and Portland court divisions. Others suggest only summoning jurors living in the Pendleton division.

Federal prosecutors object, saying jury summonses should remain within the district's Portland division.

The court will begin to hear arguments on the pretrial legal motions on May 23. Trial is set for Sept. 7.

-- Maxine Bernstein

mbernstein@oregonian.com

503-221-8212

@maxoregonian