SurveillanceA first: Constitutionality of NSA warrantless surveillance challenged by terrorism suspect
Jamshid Muhtorov, a refugee from Uzbekistan now facing terrorism charges in Colorado, is the first criminal defendant who, as part of his lawyers’ defense strategy, is challenging the constitutionality of the NSA’s warrantless surveillance program. Muhtorov filed a motion Wednesday in federal court in Denver to suppress any evidence obtained through the agency’s surveillance program on grounds that it was unlawful. In July 2013 the Justice Department reversed an earlier policy, and now informs defendants whether the case against them, in whole or in part, is based on information obtained through warrantless surveillance. To date, six months after the review process at Justice was launched, Muhtorov and Mohamed Mohamud, a Portland, Oregon teenager who had been convicted after an FBI sting operation of attempting to detonate a bomb at a Christmas tree lighting ceremony, are the only defendants to receive such a disclosure.
Jamshid Muhtorov, a refugee from Uzbekistan now facing terrorism charges in Colorado, is the first criminal defendant who, as part of his lawyers’ defense strategy, is challenging the constitutionality of the NSA’s warrantless surveillance program.
Muhtorov filed a motion Wednesday in federal court in Denver to suppress any evidence obtained through the agency’s surveillance program on grounds that it was unlawful.
“Mr. Muhtorov believes that the government’s surveillance of him was unlawful for the simple fact that it was carried out . . . under a statute that fails to comply with the Fourth Amendment’s most basic requirements” that the government obtain a warrant and that the monitoring be reasonable, his attorneys said in a 55-page document.
The Washington Post reports that Muhtorov’s case may well be the first in which a court is faced with the request to weigh the constitutionality of the controversial 2008 Foreign Intelligence Surveillance Act (FISA). The Supreme Court will likely have to make the final determination.
In question is Section 702 of the FISA Amendments Act, which allows government agencies to monitor communication among foreigners. Last year, in an earlier challenge to the law, the Supreme Court dismissed a case brought by a group of lawyers, journalists, and human rights activists. The court said that the plaintiffs could not prove they had been subject to the surveillance.
The Post notes that unlike that the plaintiffs in the earlier challenge, Muhtorov last October became the first defendant to be notified by federal prosecutors that evidence from the warrantless surveillance program was used in his case. Since evidence obtained by an NSA surveillance program was used in his case, at the very least he has standing to challenge the law which governed the evidence collection.
The Daoud case in Chicago
In another terrorism case covered in today’s issue of HSNW (see “A first: Judge in terrorism case rules defense may examine government secret FISA application,” HSNW, 30 January 2014), a federal judge in Chicago allowed defense lawyers, for the first time, to examine the FBI’s application to the FISA court to see whether that application was based on a tip from the NSA, and whether that tip was the result of the NSA bulk metadata collection program.
