Secret “Spy” Search Warrant Used Instead For Child Porn

Apr. 7, 2016 (Mimesis Law) — It all started with a “secret” search warrant that was executed by the FBI while Keith Gartenlaub and his wife were in China visiting her relatives. The Washington Post reports:

FBI agents entered Keith Gartenlaub’s home in Southern California while he and his wife were visiting her relatives in Shanghai. Agents wearing gloves went through boxes, snapped pictures of documents and made copies of three computer hard drives before leaving as quietly as they had entered. The bureau suspected that Gartenlaub was a spy for China. The FBI had obtained a secret search warrant to enter the house, citing national security grounds. The agents were searching for evidence that Gartenlaub, an information technology manager at Boeing, had leaked computer information about the defense contractor’s C-17 military transport plane to people acting on behalf of China.

That search warrant was obtained by the government in secret pursuant to the Foreign Intelligence Surveillance Act (FISA), which means that neither the defense nor public will likely see its contents. Unlike a regular search warrant issued by a U.S. Magistrate in federal court and provided to the defense as part of the discovery process once a case has been unsealed, a FISA warrant (and its underlying application) is kept secret on national security grounds.

So it is obvious that in early 2014, the vaunted FBI agents were at Gartenlaub’s house looking specifically for evidence related to spying for the Chinese government, with regards to leaked information about the U.S. Air Force’s C-17 military transport plane (the Chinese version of the C-17, the Y-20, was first unveiled in January of 2013).

And what happened to the forthcoming spying charges against Gartenlaub? Nada. Zilch. Instead:

Since the search in January 2014, no spy or hacking charges have been brought against him. Instead, seven months later, he was charged with the possession and receipt of child pornography. He has denied the charges, but a jury convicted him in December.

That’s right. The government used FISA to convince a federal judge to issue a search warrant so it can look for evidence of Gartenlaub leaking classified U.S. military information to China — we can only guess of its contents, like Gartenlaub’s defense attorneys — and when the FBI got there and purportedly found evidence related to child pornography instead, they used that instead to file child pornography charges against Gartenlaub. Juries hate child pornography. A lot. And the government knows that.

It turns out that Gartenlaub had a viable defense in trial. His lawyers argued that there were identical copies of child pornography videos found on four hard drives in his house (two of them had been at a beach house where several people had had access to them as well), and thus the government had not met its burden of proof beyond a reasonable doubt. The defense was also able to get the government’s forensic expert to concede that he wasn’t sure it was Gartenlaub who downloaded the videos:

The government’s own forensic expert, Bruce W. Pixley, said he could not find any evidence of the material being downloaded onto any of the computers, the defense noted. That means it had to have been copied onto the computer — but by whom is unknown.

Despite this, the jury found Gartenlub guilty of both counts in the indictment, and he is surprisingly not in custody awaiting sentencing. The government stands behind the manner in which it began looking for evidence of one kind of criminal activity and ended up convicting Gartenlaub of something entirely different:

The issue of the FISA warrant was the subject of an extensive pre­trial briefing and an order from the judge finding that the orders were lawfully issued and did not violate the defendant’s due process rights,” said Thom Mrozek, a spokesman for the U.S. attorney’s office in Los Angeles.… The court also found that “there is no indication of any false statements having been included in the FISA materials.”… “When law enforcement lawfully obtains evidence of a serious crime, in this case a crime against children, we will pursue further investigation of that crime,” he said.

Well, that “extensive pretrial briefing” occurred ex parte between the government and the judge, and the defense never got a chance to see the warrant or its application, and it never got a chance to cross examine the agents on its contents. And I wouldn’t foresee any government agent’s “false statements” being exposed to the judge without the benefit of rigorous cross examination. Plus, there is serious doubt to the claim that when law enforcement obtains evidence of serious crimes, it always pursues investigation of those crimes.

The “cyber cold war” with China has already produced at least two botched federal prosecutions: one in Ohio, and the other in Pennsylvania. Should Gartenlaub eventually prevail, he may end up quoting what Raymond J. Donovan asked after his acquittal: “Which office do I go to get my reputation back?”

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