TerrorismJudge rules use of NSA surveillance-based information in terrorist case is legal
Lawyers for Mohamed Mohamud, a U.S. citizen who lived in Oregon, have been denied a motion to dismiss his terrorism conviction, with the court affirming the legality of the U.S. government’s bulk phone and e-mail data collection of foreign nationals living overseas. Mohamud’s defense team claimed the surveillance violated his constitutional rights, and that federal prosecutors did not make available to the defense evidence obtained via the surveillance. U.S. District Judge Garr King upheld Mohamud’s conviction, saying that suppressing the evidence collected through NSA surveillance “and a new trial would put defendant in the same position he would have been in if the government notified him of the (surveillance) at the start of the case.”
Lawyers for Mohamed Mohamud, a U.S. citizen who lived in Oregon, have been denied a motion to dismiss his terrorism conviction, with the court affirming the legality of the U.S. government’s bulk phone and e-mail data collection of foreign nationals living overseas. Mohamud’s defense team claimed the surveillance violated his constitutional rights, and that federal prosecutors did not make available to the defense evidence obtained via the surveillance.
U.S. District Judge Garr King upheld Mohamud’s conviction, saying that suppressing the evidence collected “and a new trial would put defendant in the same position he would have been in if the government notified him of the (surveillance) at the start of the case. Dismissal is not warranted here.”
Mohamud was convicted in 2013 of attempting to detonate a car bomb at Portland’s 2010 Christmas tree-lighting ceremony, in what was actually an FBI sting.
The U.S. Foreign Intelligence Surveillance Act (FISA) permits the government to collect information on foreign nationals “reasonably believed” to be outside the United States even if the data incidentally includes communication between U.S. citizens and suspects in other countries. According to theOregonian, Mohamud was found to be communicating with two terror suspects who happened to be U.S. citizens, Anwar al-Awlaki and Samir Khan, both of whom were killed in drone strikes in Yemen in 2011 after they were declared enemy combatants by the Justice Department.
Electronic Frontier Foundation staff attorney Hanni Fakhoury said that observers were closely watching pending cases which challenge FISA. Mohamud “is at such a significant disadvantage,” Fakhoury said. “He doesn’t even have the evidence to make the challenge. That’s the whole problem in this whole regime of after-the-fact (informing of suspects).”
King did agree in his ruling that Mohamud’s attorneys did not have classified information provided by prosecutors to King, and therefore could only speculate as to what the actual evidence was. Yet King said that the motion presented by Mohamud’s defense was insufficient. “I realize the difficult position the defense team is in, but the denial of a (hearing) is commonplace in the FISA context.”
King noted that Mohamud’s most persuasive argument was that, even if the initial surveillance efforts were legal, the subsequent use of the collected information on a U.S. citizen required a warrant. Previous federal appeals court rulings have said that a warrant is needed to search subjects not covered in what the original warrant sought. The defense urged King to apply the same standard to the evidence presented by prosecutors but King disagreed. “I do not find any significant additional intrusion,” King wrote. “Thus, subsequent querying of (collected data), even if U.S. person identifiers are used, is not a separate search and does not make (such surveillance) unreasonable under the Fourth Amendment.
