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NSA Surveillance Faces First Constitutional Challenge From Guy Arrested With Secret NSA Evidence

from the more-judicial-eyes-on-the-NSA dept

Thu, Jan 30th 2014 4:03pm — Tim Cushing

Here's comes another challenge to the constitutionality of the NSA's programs. The ACLU has joined defendant Jamshid Muhtorov in filing a motion that claims his Fourth Amendment rights were violated by the NSA's surveillance efforts and seeks to suppress the admission of that evidence.

"The FISA Amendments Act affords the government virtually unfettered access to the international phone calls and emails of U.S. citizens and residents. 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," said ACLU Deputy Legal Director Jameel Jaffer. "Surveillance conducted under this statute is unconstitutional, and the fruits of this surveillance must be suppressed."

Muhtorov is facing charges that he conspired to provide material assistance to an Uzbekistani resistance group. What makes his case unique is that, for the first time, the government is unable to withhold this source of evidence. This follows five years (since the FISA Amendments Act of 2008) of the Dept. of Justice successfully preventing defendants from discovering whether evidence was obtained via NSA surveillance.

At the outset of the prosecution, the government represented that it had conducted these searches based on “court authorization[s].” Aff. of Donald E. Hale, Special Agent, FBI ¶ 12 (attached to Crim. Compl., Doc. 1). On February 7, 2012, the government notified Mr. Muhtorov that it intended to “offer into evidence or otherwise use or disclose” in these proceedings information “information obtained and derived” from surveillance conducted under FISA, 50 U.S.C. §§ 1801–1811, 1821–1829. Doc. 12. That notice, however, made no mention of surveillance under the FAA.

Mr. Muhtorov did not learn that the government had intercepted his communications under the FAA until October 25, 2013, twenty months after the government’s initial FISA notice. This was because, until recently, the government had a policy of concealing from criminal defendants any connection between the FAA and their prosecutions. This policy violated both the FAA itself, 50 U.S.C. §§ 1881e(a), 1806(c), and the due process rights of criminal defendants like Mr. Muhtorov.

As the ACLU points out in its filing, none of this came to light until after the Supreme Court had decided Clapper v. Amnesty International. During that case, the government argued that Amnesty Intl and others didn't have standing to pursue the case because they couldn't show a "sufficient likelihood" that their communications were monitored. When questioned whether that assertion meant the government would be able to perpetually insulate the program from judicial review, the government deflected this by claiming it would notify defendants if evidence was obtained via bulk collection. But this wasn't true at that point or any time previous to that.

Though the Solicitor General did not know it at the time, his representation to the Court in Amnesty was untrue. In the five years between the FAA’s enactment and the Court’s consideration of Amnesty, no criminal defendant had received notice of FAA surveillance. In fact, the Justice Department had a practice of concealing from criminal defendants the role that the FAA had played in the government’s investigation of them. The Solicitor General apparently learned of the Justice Department’s policy only because the Chair of the Senate Select Committee on Intelligence, Senator Dianne Feinstein, made public statements about the government’s use of evidence acquired under the FAA in certain criminal prosecutions, including this one.

This refers to Feinstein's grandstanding in defense of the FAA back in October, where she presented a long list of cases supposedly aided by the programs authorized by the FAA. When she did this, she exposed the government's lie, in this case an inadvertent one by the Solicitor General, who honestly thought he was presenting the truth. Anyone on that list being prosecuted should have been informed of evidence obtained through these programs. Feinstein's defense of the NSA inadvertently publicized the government's concealment of evidence sources.

With standing now granted and the government forced to admit the evidence was acquired in this fashion, the ACLU hopes to have the evidence suppressed on constitutional grounds. While the program is now undergoing some changes in terms of access, the underlying collection is still constitutionally questionable. Hopefully, this provokes another examination of the NSA's untargeted, collect-it-all programs and moves the agency closer to adherence with the Fourth Amendment.

Muhtorov Defendants Motion to Suppress (PDF)Muhtorov Defendants Motion to Suppress (Text)

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Filed Under: 4th amendment, constitutionality, criminal prosecution, fourth amendment, jamshid muhtorov, nsa, secrecy, surveillance
Companies: aclu

32 Comments

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Anonymous Coward, 30 Jan 2014 @ 4:19pm

Quick question. If they find that the illegal wiretapping evidence was inadmissible, would the warrants to search his home from the evidence be invalidated as well?

Thinking of "fruit of the poisonous tree" doctrine and this might become a mistrial and thus influenced by a double jeopardy standing for another go by the DoJ.
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mr. sim (profile), 30 Jan 2014 @ 4:23pm

Re:
if they find the wiretap illegal everything is gone. there is nothing to prove he did anything it's all fruit of the poisonous tree. double jeopardy does attach
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Mason Wheeler (profile), 30 Jan 2014 @ 4:25pm

Bad test case
Wait a minute. I can understand if this was a case of the NSA actually doing something wrong--and heaven knows there are plenty to choose from--but if the evidence in this case is about this guy actually working with a terrorist group, isn't that the legitimate, intended purpose of the law? Maybe there's some nuance that I've missed, but this particular case doesn't look like any wrongdoing to me.
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krolork (profile), 30 Jan 2014 @ 4:27pm

We need a revolution.
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Anonymous Coward, 30 Jan 2014 @ 4:43pm

Re: Bad test case
Parallel construction of a case.

All evidence should be provided at the beginning of the case. They operated in murky waters and provided a tip to another agency and they worked hard to try and find a way to get that information without revealing the source.
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Lorpius Prime (profile), 30 Jan 2014 @ 4:49pm

If the 4th Amendment only protects the innocent, then it's useless. The government simply would not prosecute people against whom their unconstitutional searches turn up no evidence, and so those searches would never be challenged in court.
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aerilus, 30 Jan 2014 @ 4:50pm

Im confused. why is the US prosecuting a man for assisting the resistance group of another country. shouldent he be turned over to the people he was perpetuating the crimes against. maybe the UN.
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Anonymous Coward, 30 Jan 2014 @ 4:51pm

Re: Bad test case
I think you are thinking like me. While I don't want this guy going back to Uzbekistan to support a Jihad movement, it should have a proper legal basis under US law. In some respects, this is like Harvey Schwartz, prominent Boston Attorney, representing the Neo-Nazi movement to parade in Mass. I do understand a bit, considering his government is the reason he got asylum in the first place, so he's looking to overthrow it. Maybe he should meet up with Rep. Peter King, considering they both support radicals if it's in there interest.
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That One Guy (profile), 30 Jan 2014 @ 4:52pm

Re: Bad test case
If they gathered the evidence illegally, and/or refused to let the defendant know about it or have access to it when it was being used against them in trial, it doesn't(or shouldn't) matter if he's guilty as can be or completely and utterly innocent, the evidence still needs to be barred from being used in the trial against him.
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AricTheRed (profile), 30 Jan 2014 @ 4:52pm

Dirty, lying, cheating, oathbreaking scumbags!

Now that that is out of the way, As a 'professional" Interrogator I always was aware that lying is hard work, 'cause you gotta keep track of all the lies you tell. Finally Dianne Feinstein did We The People a favor by defending her unconstitutional position on the NSA.

I don't care if 100 terrorists get off scot-free if our government had to lie and violate the constitution to get them convicted in the first place
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MrWilson, 30 Jan 2014 @ 6:09pm

Re: Bad test case
No, no, no. Definitely not.

The problem is that if you use the excuse that it's okay to break the rules *this* time because *this* guy is actually a real bad guy, then you're giving free license to break the rules whenever someone comes up with a justification for doing so. That thinking leads to the NSA collecting everything it can get it's grubby hands on and making software and devices less secure with their backdoors all in the name of doing what they feel is right, whether it violates the Constitution or not, whether they're collecting data on Americans, etc.

If he's really a bad guy, then you should be able to find something on him. Even if all charges are dropped, there's a strong chance they'll have him under surveillance with a legitimate warrant and maybe do it the right way next time he tries to provide aid to a terrorist organization.

This was the same mentality that lead to David Eckert getting his repeated, fruitless anal cavity searches conducted by (unethical) medical staff and overseen by cops who "heard" from another cop that he was a bad guy who stored drugs up his butt.
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MrWilson, 30 Jan 2014 @ 6:12pm

Re:
Because it's against the law in the US to provide material support to a designated foreign terrorist organization.

http://www.law.cornell.edu/uscode/text/18/2339B
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Pixelation, 30 Jan 2014 @ 6:30pm

Collecting evidence is collecting evidence
If the government came into the homes of Americans and started collecting fingerprints and DNA samples and storing them away, could they claim they aren't collecting evidence since they aren't looking at it right now? Would this be any different from what they are doing with metadata, etc?

Methinks not.
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Lapsed Revolutionary, 30 Jan 2014 @ 6:58pm

Hardly a day comes by without NSA on the front pages. ooops.

Let see. Collect-it-all, f. Constitution. Global Dominance, no Plan B.

Then Snowden's info hits the fan.

Should these poeople really have their fingers on nukes as well?
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Anonymous Anonymous Coward, 30 Jan 2014 @ 7:59pm

Whew!
I am so glad we are getting this out of the way early in the 21rst century. Could you imagine if this was going on AFTER Skynet takes over?
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MrWilson, 30 Jan 2014 @ 8:46pm

Re: Whew!
I'm sure the alien anthropologists will be grateful for the NSA's data hoard since they'll provide a decent snapshot of what human beings were like in the early 21st century after we're all gone, if the data is preserved. I can't wait for an NSA apologist to try to use that in their defense.
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Anonymous Coward, 30 Jan 2014 @ 11:20pm

Poe's Law Alert
You're forgetting a minor detail: the DoJ would never let somehting like that happen
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Rekrul, 31 Jan 2014 @ 12:53am

Re: Bad test case
Wait a minute. I can understand if this was a case of the NSA actually doing something wrong--and heaven knows there are plenty to choose from--but if the evidence in this case is about this guy actually working with a terrorist group, isn't that the legitimate, intended purpose of the law? Maybe there's some nuance that I've missed, but this particular case doesn't look like any wrongdoing to me.

If the evidence collection was illegal, it shouldn't be admissible, regardless of whether he's guilty or innocent. Allowing it sets a bad precedent.

Consider this scenario;

Cops are pretty sure that a certain person is guilty of a murder, but they don't have enough evidence for a search warrant. So they illegally break into his house and find the murder weapon. The judge allows this to be used in court because he's a bad guy. A few months down the road, your neighbor tells the cops that he thinks you're doing something illegal, but he doesn't have any proof. No problem, the cops will just break into your home and search it, maybe shoot your dog in the process, rough up your spouse, terrorize your kids. Maybe you'll end up on the floor with a gun to your head while a cop growls in your ear "Tell us where it is or they're going to be scraping your brains off the floor."

Legal protections exist to protect the innocent from having their rights violated. If you're deciding the legality of the violations after they've already been committed, then nobody has any protection.
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Ninja (profile), 31 Jan 2014 @ 1:51am

Some may say that the guy is guilty or something but it's irrelevant to the case. Even if he is a murderer or whatever the warrantless evidence says it still should be dropped. I'd rather have the Constitutional rights of millions upheld than see one criminal in jail. Even if said criminal directly harmed me.

This situation is akin to supporting hate speech because it fits the concept of free speech.
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Anonymous Howard (profile), 31 Jan 2014 @ 2:41am

Re: Re: Bad test case
Exactly.

Otherwise the DoJ will get the message that the end justifies the means. And that's a slippery slope you don't want to step on.
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btrussell (profile), 31 Jan 2014 @ 3:56am

Re: Re: Re: Bad test case
They want to justify the means.

Someone guilty being let off will validate that for them if not in public, then in secret.
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Anonymous Coward, 31 Jan 2014 @ 3:56am

Terrorist? Freedom Fighter? Could be one in the same...
The fact remains that we are no longer a nation of laws, just a bunch of greedy, pistol packing punks. The terrorists will win? It sure sounds like they already have.
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aerilus, 31 Jan 2014 @ 5:30am

Re: Re:
sounds about like the no fly list. who in charge of establishing whose on this list. we say terrorist they say patriots. Its not really the US's job to discern. leave it to the UN/EU/AU to prosecute.
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Bergman (profile), 31 Jan 2014 @ 9:02am

Re: Bad test case
Our legal system is based on the idea that it is better that 100 guilty men go free than one innocent man be imprisoned wrongly. Like most things in government, it works better in theory than practice.

But yes, even if he is a terrorist and absolutely guilty, he still has rights that the government cannot violate if they want to be able to successfully prosecute him.
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John Fenderson (profile), 31 Jan 2014 @ 9:13am

Re: Bad test case
Maybe there's some nuance that I've missed

The nuance may be "the ends don't justify the means".
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akp (profile), 31 Jan 2014 @ 9:14am

Re: Bad test case
No, because our legal system is supposed to be founded on the notion that we'd rather let a hundred guilty people go free than send one innocent man to prison.

That's why we have due process in the first place. Idealistically, we'd be protecting the rights of everyone, not only the "innocent."
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Anonymous Coward, 31 Jan 2014 @ 10:07am

Re: Re:
And part of the problem with that is if they don't like what a group in another country stands for, they simply designate them a foreign terrorist organization because... well... fuck you. That's why. Whether the designation has any merit or not is beside the point. Kind of like the way the no-fly list works.
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Anonymous Coward, 31 Jan 2014 @ 10:15am

Re:
For most reasonable people the difference is that freedom fighters attack military and logistical targets aimed at disrupting the operation of the government they oppose and try to avoid harming innocent civilians whenever possible. Terrorists try to strike fear in a population by attacking civilians in an attempt to get them to put pressure on their government to end the opposition to what the terrorists stand for.

For the government the difference is whether they think supporting the organization is a benefit to them or not regardless of what the organization's methods are or are not.
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Anonymous Coward, 31 Jan 2014 @ 10:30am

Re: Bad test case
If he's really a bad guy and you are investigating him because you have a genuine concern that what he is up to is really bad, why is it too much trouble to demonstrate that genuine concern that had to come from somewhere that you developed for a good reason, and go get a damn warrant? Laziness? Is really too much trouble? So much trouble that you would rather risk having your entire case destroyed and all the evidence declared inadmissible letting a bad guy go free all because you were too lazy to go get a damn warrant. Geez. No wonder they can't connect the dots unless someone numbers them for for them.
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Rekrul, 31 Jan 2014 @ 4:12pm

Re: Re: Bad test case
But yes, even if he is a terrorist and absolutely guilty, he still has rights that the government cannot violate if they want to be able to successfully prosecute him.

Or they could just designate him an enemy combatant and all his rights magically disappear...
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Anonymous Coward, 2 Feb 2014 @ 6:47pm

Re: Collecting evidence is collecting evidence
Yes. The main difference with spies physically --side-stepping your guard dog & IP cameras and-- entering Americian homes is that gives citizens plain knowledge of each warrentless privacy violation & then well-financed citizens could try seeking legal recourse against their government.

The show is on the other foot. Because at this point, you cannot see your NSA file. There in fact is no such file, because everybody's NSA metadata is mashed together "until your government targets you, the citizen, for suspected wrongdoing" (or attempts at collaborating with wrongdoers).
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