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

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

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.

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

Feds Wait Until Late Friday To Release Details Of Criminal Case That Used NSA Surveillance, Which They'd Kept Secret

from the friday-night:-where-news-goes-to-die dept

Back in July, the NY Times made it pretty clear that United States Solicitor General Donald Verrilli almost certainly lied to the Supreme Court, concerning how evidence obtained via NSA surveillance techniques would end up in court. As you may recall, the lawsuit in question involved the ACLU, with the government arguing that the ACLU had no standing. The Supreme Court asked a basic question about whether or not anyone could possibly have standing then to challenge the law -- and Verrilli insisted (and the justices relied on) the claim that if the feds used data collected under these questionable surveillance statutes, that the defense team would be told about this, and they could challenge the constitutionality of the collection. Except... no defendant had ever been told any such thing. And then someone noticed that Senator Dianne Feinstein, in defending the NSA surveillance, had insisted that it was key in a bunch of cases -- meaning one of them was lying. This, apparently, got Verrilli quite upset at the various national security lawyers who had looked over his defense and who apparently chose not to tell him that what he was saying about the government telling defendants stuff wasn't, in fact, true. As was reported a few weeks ago, Verrilli then led a fierce debate within the administration, and said that a policy change was necessary. And, to kick it off, they were searching for a single case in which they would reveal such info was used.

Of course, this allowed the feds to cherry pick their case... and the date and time to release the "news." So, of course they chose Friday night, which is when the government always tries to release bad news. So we're taking that news and discussing it the following Monday, because this is big and it deserves serious attention. Late Friday, the government admitted that it had used information gleaned via programs under the FISA Amendments Act in the criminal case against Jamshid Muhtorov, who was charged in January 2012 with "providing material support to the Islamic Jihad Union, a designated terrorist organization based in Uzbekistan." Much of the original complaint against Muhtorov involves discussions about intercepted calls and emails, though it's unclear how many (if any) of those were done under the FAA or other law enforcement authorities.

The new notice in the case doesn't reveal very much at all, other than that the government intends to "offer into evidence or otherwise use or disclose in proceedings... information obtained or derived from acquisition of foreign intelligence information conducted pursuant to the" FAA. Basically, this case now is very likely to become the key case in testing the constitutionality of at least some aspects of the FISA Amendments Act surveillance efforts (which include the "upstream" tapping of the internet backbone via telcos, though it's not clear if that was used in this particular case).

In other words, this case just got a lot more interesting -- though it's clear that the feds tried very carefully to pick a case where the facts work strongly in their favor. I would imagine, however, that various public interest and civil liberties groups are gearing up to see how they might help out in the case.

Filed Under: dianne feinstein, donald verrilli, fisa amendments act, jamshid muhtorov, nsa, nsa surveillance, standing