Federal prosecutors say they have no evidence that any

national security surveillance was used to investigate the armed takeover of the Malheur National Wildlife Refuge.

Assistant U.S. Attorney Ethan Knight said intelligence agents made no wiretap interceptions in the case, and he's not aware of any electronic surveillance by national security agencies targeting the 41-day occupation of the refuge in Harney County.

Knight was responding to a defense motion that asked a judge to order prosecutors to disclose whether law enforcement officers intercepted their emails, phone calls or other electronic communications using national security surveillance methods.

"The defendants' request amounts to mere speculation,'' Knight wrote in his memo.

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

Seventeen of 26 defendants who face federal charges in the occupation have a note in the FBI's National Crime Information Center -- a computer database available to local, state and federal agencies -- that suggests each has "possible ties with terrorism,'' defense lawyer Amy Baggio wrote in her motion seeking government disclosure.

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. The 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.

Baggio represents Joseph O'Shaughnessy, indicted with 25 others on the charge of conspiring to impede federal officers from doing their work at the refuge through intimidation, threats or force.

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

Knight listed the ways FBI agents and other officers gathered information about the occupation that began Jan. 2 in a protest over federal land ownership.

They monitored TV news, YouTube broadcasts and social media "while the defendants publicly incriminated themselves,'' Knight said.

They obtained criminal search warrants for vehicles, online social media accounts and digital devices that were seized at the refuge or upon arrest. They got court orders for so-called pen registers that capture phone numbers dialed on suspects' outgoing phone calls and trap and trace devices that capture phone numbers of incoming calls. They sought court orders for stored electronic communications.

The government has turned over to defense lawyers 43,700 pages and about 2 terabytes of evidence. Prosecutors also have turned over video obtained from aerial surveillance of the refuge and cameras placed on telephone poles, as well as witness statements.

Even if, for argument's safe, an intelligence agency such as the National Security Agency possessed information about the refuge occupation defendants, the prosecution team in the Malheur case doesn't have any of that material, Knight said.

Under the Brady rule, the government must disclose any and all material that could help the defendants, but not from agencies that aren't acting on the government's behalf in this case, Knight said.

"There has been no joint investigation with NSA or any other intelligence agency in this case,'' he said. "No intelligence agency collaborated with the prosecution team at any point in the investigation, and the prosecution has no reason to suspect that NSA or any other intelligence agency has any information relevant to this case.''

A hearing would be a waste of time on the subject, he said, and asked that the defense motion be denied "because there is absolutely nothing to indicate that this investigation or prosecution involved anything other than a normal, albeit high-profile, domestic criminal investigation.''

-- Maxine Bernstein

mbernstein@oregonian.com

503-221-8212

@maxoregonian