Warrantless wiretapping has managed to duck significant judicial review. Until now.


(Michael Reynolds/EPA)

Jamid Muhtorov was indicted in January 2012 for allegedly making plans to travel overseas and fight on behalf of the Islamic Jihad Union (IJU), a designated foreign terrorist organization. In October, he became the first defendant to be informed that the case against him was built on information obtained via warrantless surveillance under the FISA Amendments Act. Now, he's challenging the constitutionality of that surveillance.

It's a significant development. For years, the government has successfully ducked judicial review of the program outside of the secretive Foreign Intelligence Surveillance Act Court by arguing that the people filing lawsuits couldn't prove that they had been spied on. But with the notification to Muhtorov, that strategy won't work any more, making his case an almost unavoidable test of the constitutional merits of warrantless wiretapping.

Last year, the Supreme Court dismissed an earlier challenge to the FAA brought by the American Civil Liberties Union on behalf of a coalition of human rights, media and legal organizations. In its opinion, the high court agreed with the government that the groups couldn't sue because they had no proof that they were subject to the surveillance they alleged. But a crucial part of the ruling was the government's claim that there was someone else who would be able to challenge the law's constitutionality: criminal defendants. The Justice Department said that if it ever used data collected using FISA in a criminal prosecution, it would alert the defendants of this fact, allowing them to raise constitutional concerns.

There was just one problem: The government wasn't actually telling defendants that they had been subject to warrantless surveillance. In fact, the ACLU's Patrick C. Toomey notes that at the time last year's case was argued before the high court, "no criminal defendant had ever received notice of FAA surveillance in the five years since the FAA had been enacted."

Solicitor General Donald B. Verrilli Jr., who argued the government's case before the Supreme Court, discovered in June that his assurances to the court had been wrong. The Justice Department actually did not notify criminal defendants if the case against them was based on warrantless spying. This set off a months-long internal debate over whether the Department of Justice's policy should align with the process it already claimed was in place during Clapper v. Amnesty.

Eventually, the Justice Department decided that keeping the information from defendants any longer "could not be justified legally," and Muhtorov and another defendant who had been convicted received notification about how the FAA was used in developing the cases against them. And now, Muhtorov's lawyers and the ACLU have filed a motion for suppression of evidence, making a constitutional case against the law:

The FAA violates the Fourth Amendment because it authorizes surveillance that violates the warrant clause and, independently, because it authorizes surveillance that is unreasonable. The statute also violates Article III by requiring judges to issue advisory opinions in the absence of a case or controversy. The procedural deficiencies of the FAA render the statute unconstitutional, and they render the surveillance of Mr. Muhtorov unconstitutional as well.

The motion also requests discovery of more information about the government's FAA process. According to the filing, the initial notice "contains only a bare recitation of the statutory language requiring the notice" and "is insufficient to allow Mr. Muhtorov to craft a suppression motion addressed to the specific FAA surveillance to which he was subjected." His legal team is asking for a significant amount of further documentation to make the material case for why the surveillance programs were unconstitutional, including:

[T]he government’s applications to the FISC seeking authorization for, and the FISC’s orders authorizing, the FAA surveillance that intercepted communications to or from Mr. Muhtorov; notice of all communications to or from Mr. Muhtorov intercepted under the FAA; all evidence obtained under the FAA that the government intends to use at trial or from communications intercepted under the FAA that the government intends to use at trial; and records indicating how Mr. Muhtorov’s communications were intercepted and identified under the FAA or were derived from communications collected under the FAA.

This means the case could uncover even more details about this particular government surveillance program than already revealed by leaks from former NSA contractor Edward Snowden. And given that previous Supreme Court cases and the Justice Department's own policy-wrangling all but ensures that the case will have standing, USA v. Muhtorov is perhaps the most significant challenge to warrantless wiretaps in the U.S. yet.

Andrea Peterson covers technology policy for The Washington Post, with an emphasis on cybersecurity, consumer privacy, transparency, surveillance and open government.
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