A first: Constitutionality of NSA warrantless surveillance challenged by terrorism suspect
The lawyers for the 20-year old Adel Daoud, a U.S. citizen from suburban Chicago charged with plotting to blow up a downtown Chicago night club, said that if the FISA request was based on NSA-collected information, they would move to challenge the legality of the FISA-approved surveillance of Daoud on exclusionary rules grounds.
In the law’s 36-year history of FISA, no defense attorney has ever been granted permission to view such material, as courts typically defer to government arguments when national security issues are involved.
Attorney General Eric H. Holder Jr. filed a sworn affidavit telling the court that disclosure would harm national security. The defense lawyer, Thomas A. Durkin, has a security clearance, and the judge said it was important that he saw the materials. “While this court is mindful of the fact that no court has ever allowed disclosure of FISA materials to the defense, in this case, the court finds that the disclosure may be necessary,” Judge Sharon Johnson Coleman said in an order issued Wednesday. “This finding is not made lightly, and follows a thorough and careful review of the FISA application and related materials.”
Judge Coleman added: “This court believes that the probable value of disclosure and the risk of nondisclosure outweigh the potential danger” of allowing the attorney, with proper clearances, to see the material.
“The adversarial process is integral to safeguarding the rights of all citizens,” Judge Coleman wrote, “including those charged with a crime.”
The Muhtorov case in Colorado
Muhtorov, 37, and another man are charged with attempting to provide material support to the Islamic Jihad Union, an Uzbek group designated by the U.S. government as a terrorist organization. The government says that members of the group have trained with and provided support to al-Qaeda. Muhtorov is not accused of plotting attacks on targets in the United States. He pleaded not guilty.
The evidence against Muhtorov consists of intercepted e-mails and phone calls during 2011. The government, while informing him that the case against him is based in part on communications it obtained without a warrant, did not say what specific communication was so obtained, and whether information obtained through warrantless surveillance was the basis for subsequent warrant applications.
Muhtorov’s defense lawyers argue that the 2008 law grants powers “far more sweeping than the authority that the government” has exercised with the traditional court order under FISA, which requires a warrant from a judge and a finding that the target is an agent of a foreign power.
They lawyers further argue that the Supreme Court has stressed that a surveillance statute is reasonable only if it is precise and discriminate. The FISA Amendments Act “is anything but,” said the lawyers from the federal public defender’s office and the American Civil Liberties Union (ACLU).
The Post notes that the 2008 law authorized government agencies to collect large amounts of e-mails and phone calls from U.S. phone and Internet companies without showing probable cause that each target is a foreign agent. As long as the individual is “reasonably believed” to be located overseas, and a court has signed off on the targeting procedures, no individual warrant is required. The decision on whom to target is made by U.S. intelligence agencies.
“The absence of an individualized suspicion requirement means that the government can engage in the wholesale collection of U.S. persons’ international communications,” Muhtorov’s defense lawyers wrote.
The defense attorneys, referring to information leaked by Edward Snowden, said that the government may also search communications into and out of the United States for information about targets — not just to or from targets – if these agencies believe that those targets are overseas.
Muhtorov’s attorneys cited a 2011 ruling, which was declassified last year, which showed concern by the FISA court about a government pattern of “substantial misrepresentation regarding the scope of a major collection program.” In the case of Section 702, the court found that the NSA had been using the law to collect e-mails which were not related to the targeted address and that the “volume and nature of the information” was “fundamentally different from what the Court had been led to believe.”
“We’ve learned over the last few months that the NSA has implemented the law in the broadest possible way, and that the rules that supposedly protect the privacy of innocent people are weak and riddled with exceptions,” ACLU deputy legal director Jameel Jaffer said in a statement.
DoJ July 2013 policy change
The New YorkTimes reports that Muhtorov’s challenge stems from the case which the Supreme Court rejected last year. In deciding to dismiss, the Supreme Court relied upon the assurance by the U.S. solicitor general that the government would notify criminal defendants when it had used evidence from the surveillance.
Donald Verrilli, the solicitor general at the time, did not know, however, that the Justice Department had a policy of concealing such evidence from defendants. After Senate Intelligence Committee chair Dianne Feinstein (D-California) said in late 2012 that the government had used evidence from warrantless monitoring in some cases, Justice, in July 2013, reversed its policy on this issue.
After notifying Muhtorov in October of the fact that the case against him is partly based on warnatless surveillance, Justice, in November, has informed 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, that the case against him is also partly based on warrantless surveillance. Mohamud has not yet been sentenced.
To date, six months after the review process at Justice was launched, Daoud and Muhtorov are the only defendants to receive such a disclosure. No inmate serving time for a completed case has been notified. The standards prosecutors have used in deciding who merits such a disclosure have not been explained. A Justice Department official told the Times that the review was continuing.
The Times notes that “Together, the two actions [in the Daoud and Muhtorov cases] are significant developments in efforts to obtain more judicial review of the legality of surveillance conducted on domestic soil for national security purposes amid continuing fallout from leaks about NSA wiretapping by Edward J. Snowden, a former agency contractor.”
