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Warrantless Surveillance Challenged by Defendant Warrantless Surveillance Challenged by Defendant
(7 months later)
WASHINGTON — A Colorado resident charged with terrorism-related offenses challenged the constitutionality on Wednesday of a 2008 law allowing the National Security Agency to conduct a sweeping program of surveillance without warrants on American soil. The challenge — the first of its kind — could lead to a Supreme Court test of the program. WASHINGTON — A Colorado resident charged with terrorism-related offenses challenged the constitutionality on Wednesday of a 2008 law allowing the National Security Agency to conduct a sweeping program of surveillance without warrants on American soil. The challenge — the first of its kind — could lead to a Supreme Court test of the program.
At the same time, a Federal District Court judge in Illinois ordered the government to show a defense lawyer classified materials related to the national security surveillance of his client. No defense lawyer has apparently ever been allowed to see such materials since the Foreign Intelligence Surveillance Act was enacted in 1978.At the same time, a Federal District Court judge in Illinois ordered the government to show a defense lawyer classified materials related to the national security surveillance of his client. No defense lawyer has apparently ever been allowed to see such materials since the Foreign Intelligence Surveillance Act was enacted in 1978.
Together, the two actions 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 N.S.A. wiretapping by Edward J. Snowden, a former agency contractor.Together, the two actions 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 N.S.A. wiretapping by Edward J. Snowden, a former agency contractor.
In the Colorado case, lawyers for the defendant, Jamshid Muhtorov, filed a filed a 69-page brief asking a federal judge to bar prosecutors from introducing evidence derived from warrantless surveillance by the N.S.A. They argued that the program violates the Fourth Amendment.In the Colorado case, lawyers for the defendant, Jamshid Muhtorov, filed a filed a 69-page brief asking a federal judge to bar prosecutors from introducing evidence derived from warrantless surveillance by the N.S.A. They argued that the program violates the Fourth Amendment.
Mr. Muhtorov, a permanent resident who is in the country legally, is accused of planning to travel abroad to join an Islamist terrorist group in his native Uzbekistan. In October, he was notified by the Justice Department that prosecutors planned to use evidence against him that was derived from surveillance conducted under a law known as the FISA Amendments Act of 2008.Mr. Muhtorov, a permanent resident who is in the country legally, is accused of planning to travel abroad to join an Islamist terrorist group in his native Uzbekistan. In October, he was notified by the Justice Department that prosecutors planned to use evidence against him that was derived from surveillance conducted under a law known as the FISA Amendments Act of 2008.
The 2008 law essentially legalized a form of the Bush administration’s once-secret program of surveillance without such warrants, as long as the eavesdropping was “targeted” at a noncitizen abroad. While the government has been using the law to conduct surveillance for more than five years, the Supreme Court has never ruled on its constitutionality.The 2008 law essentially legalized a form of the Bush administration’s once-secret program of surveillance without such warrants, as long as the eavesdropping was “targeted” at a noncitizen abroad. While the government has been using the law to conduct surveillance for more than five years, the Supreme Court has never ruled on its constitutionality.
Last year, the court threw out a lawsuit challenging the law for technical reasons: The plaintiffs could not prove they had been wiretapped and lacked standing to file the case. At the time, the government had never told anyone about being subjected to such surveillance. The notice to Mr. Muhtorov means he has standing to challenge it.Last year, the court threw out a lawsuit challenging the law for technical reasons: The plaintiffs could not prove they had been wiretapped and lacked standing to file the case. At the time, the government had never told anyone about being subjected to such surveillance. The notice to Mr. Muhtorov means he has standing to challenge it.
“The fruits of the government’s surveillance of Mr. Muhtorov must be suppressed because the statute that authorized the surveillance is unconstitutional,” the motion contends.“The fruits of the government’s surveillance of Mr. Muhtorov must be suppressed because the statute that authorized the surveillance is unconstitutional,” the motion contends.
The development in the Muhtorov case is connected, in a roundabout way, to the Illinois case, in which a different judge separately ordered the government to show classified surveillance-related materials to a defense lawyer. That case involves Adel Daoud, who, after an F.B.I. sting, was charged with plotting to blow up a Chicago-area bar.The development in the Muhtorov case is connected, in a roundabout way, to the Illinois case, in which a different judge separately ordered the government to show classified surveillance-related materials to a defense lawyer. That case involves Adel Daoud, who, after an F.B.I. sting, was charged with plotting to blow up a Chicago-area bar.
Attorney General Eric H. Holder Jr. filed a sworn affidavit telling the court that disclosure would harm national security. But 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. “This finding is not made lightly, and follows a thorough and careful review of the FISA application and related materials.”Attorney General Eric H. Holder Jr. filed a sworn affidavit telling the court that disclosure would harm national security. But 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. “This finding is not made lightly, and follows a thorough and careful review of the FISA application and related materials.”
It is not clear what the judge saw that raised her concerns. The Justice Department declined to comment.It is not clear what the judge saw that raised her concerns. The Justice Department declined to comment.
Mr. Durkin had originally raised the possibility that the eavesdropping might be illegal because there was a suggestion that his client had been wiretapped without a warrant under the 2008 law, and, if so, Mr. Daoud would have standing to challenge the law. But the Justice Department has since said that only the traditional kind of surveillance, with individual court orders, played a role in Mr. Daoud’s case.Mr. Durkin had originally raised the possibility that the eavesdropping might be illegal because there was a suggestion that his client had been wiretapped without a warrant under the 2008 law, and, if so, Mr. Daoud would have standing to challenge the law. But the Justice Department has since said that only the traditional kind of surveillance, with individual court orders, played a role in Mr. Daoud’s case.
Last June, after reading an article related to Mr. Snowden’s leaks that mentioned the case of Mr. Daoud and a similar matter in Florida, the solicitor general, Donald B. Verrilli Jr., raised questions inside the Justice Department about whether prosecutors were telling defendants when they faced evidence derived from warrantless wiretapping.Last June, after reading an article related to Mr. Snowden’s leaks that mentioned the case of Mr. Daoud and a similar matter in Florida, the solicitor general, Donald B. Verrilli Jr., raised questions inside the Justice Department about whether prosecutors were telling defendants when they faced evidence derived from warrantless wiretapping.
In the Supreme Court case, Mr. Verrilli had assured the justices that such defendants would receive notice, allowing anyone with proper standing to challenge the 2008 law. But it turned out that it was instead the practice of the National Security Division not to say when warrantless surveillance was an earlier link in an investigative chain.In the Supreme Court case, Mr. Verrilli had assured the justices that such defendants would receive notice, allowing anyone with proper standing to challenge the 2008 law. But it turned out that it was instead the practice of the National Security Division not to say when warrantless surveillance was an earlier link in an investigative chain.
In late July, after Mr. Verrilli raised objections about the legal basis of that practice, the department changed its policy. Prosecutors began scrubbing case files to see who should be belatedly notified.In late July, after Mr. Verrilli raised objections about the legal basis of that practice, the department changed its policy. Prosecutors began scrubbing case files to see who should be belatedly notified.
In October, Mr. Muhtorov — whose case had not yet gone to trial — was the first defendant to receive such a notice. The next month, the department similarly notified a defendant in Oregon, Mohamed Mohamud, who had been convicted after an F.B.I. sting of attempting to detonate a bomb at a Christmas tree lighting ceremony, but had not been sentenced.In October, Mr. Muhtorov — whose case had not yet gone to trial — was the first defendant to receive such a notice. The next month, the department similarly notified a defendant in Oregon, Mohamed Mohamud, who had been convicted after an F.B.I. sting of attempting to detonate a bomb at a Christmas tree lighting ceremony, but had not been sentenced.
To date, six months after the scrub began, the two are the only defendants to receive such a disclosure; no inmate serving time for a completed case has been notified. It is not clear what standards prosecutors have used in deciding who merits a belated disclosure. A Justice Department official said the review was continuing.To date, six months after the scrub began, the two are the only defendants to receive such a disclosure; no inmate serving time for a completed case has been notified. It is not clear what standards prosecutors have used in deciding who merits a belated disclosure. A Justice Department official said the review was continuing.
The disclosures to Mr. Muhtorov and Mr. Mohamud were terse. Both Mr. Muhtorov’s motion, and one filed on Jan. 13 by Mr. Mohamud’s lawyers, are seeking discovery orders in which judges would require the Justice Department to turn over more details about the context of the surveillance and which evidence is linked to it.The disclosures to Mr. Muhtorov and Mr. Mohamud were terse. Both Mr. Muhtorov’s motion, and one filed on Jan. 13 by Mr. Mohamud’s lawyers, are seeking discovery orders in which judges would require the Justice Department to turn over more details about the context of the surveillance and which evidence is linked to it.
While Mr. Mohamud’s lawyers have raised the prospect that they will challenge the constitutionality of the surveillance as the basis for seeking a mistrial, for now they are simply trying to gather more facts. Mr. Muhtorov’s lawyers, by contrast, are already challenging the 2008 law.While Mr. Mohamud’s lawyers have raised the prospect that they will challenge the constitutionality of the surveillance as the basis for seeking a mistrial, for now they are simply trying to gather more facts. Mr. Muhtorov’s lawyers, by contrast, are already challenging the 2008 law.
Mr. Muhtorov is being represented by the federal public defender’s office in Colorado with assistance from the American Civil Liberties Union, which also represented the plaintiffs in the failed challenge that was dismissed by the Supreme Court last year.Mr. Muhtorov is being represented by the federal public defender’s office in Colorado with assistance from the American Civil Liberties Union, which also represented the plaintiffs in the failed challenge that was dismissed by the Supreme Court last year.
The Obama administration’s Justice Department has not yet offered an extensive legal defense of the 2008 law. But in a 2008 brief, the Bush administration had argued that the surveillance authorized by the statute met Fourth Amendment standards.The Obama administration’s Justice Department has not yet offered an extensive legal defense of the 2008 law. But in a 2008 brief, the Bush administration had argued that the surveillance authorized by the statute met Fourth Amendment standards.
“The safeguards built into the statute provide reasonable assurance that the surveillance it authorizes will target only foreign persons outside the United States and will be conducted in a way that minimally affects the privacy of U.S. persons,” the 2008 brief said. “The Fourth Amendment requires no more.”“The safeguards built into the statute provide reasonable assurance that the surveillance it authorizes will target only foreign persons outside the United States and will be conducted in a way that minimally affects the privacy of U.S. persons,” the 2008 brief said. “The Fourth Amendment requires no more.”