Abdo said the original FISA statute, passed in 1978, requires the government to notify defendants when evidence being used against them is derived from surveillance authorized by the law. The court, he said, should require the government to abide by the law. “Otherwise,” he said, “the most sweeping surveillance program ever enacted by Congress will never be reviewed in public by a court.”
Similarly, Stephen I. Vladeck, a law professor at American University, said, “Everyone knows the role that Section 702 is playing in a case like this.” But, he said, “thanks in part to the Supreme Court, the government can use Section 702 and then never have to defend its constitutionality.”
The central problem with Section 702, critics say, is its breadth and lack of individual warrants. The law targets non-U.S. persons “reasonably believed” to be located outside the United States but does not require that the government obtain a warrant before intercepting communications.
Moreover, the purpose of the collection is “foreign intelligence,” a broad category that may include everything from information on terrorism to nuclear proliferation to what a European journalist is writing on human rights abuses or an African businessman is saying about global financial risk, experts say.
According to a criminal complaint filed by an FBI agent, Daoud received an e-mail in February 2012 regarding his registration with an online jihadi forum overseas. In May 2012, Daoud sent himself a link for nine issues of Inspire magazine, an online publication put out by al-Qaeda in the Arabian Peninsula, an al-Qaeda affiliate.
That same month, two FBI undercover employees posing as jihadists contacted Daoud online in response to material he had posted. Between July and September, an undercover FBI agent met Daoud in Chicago and helped him plan the attack.
Daoud was arrested in September after he attempted to detonate a bomb placed in a jeep outside a Chicago bar with a remote-triggering device.
Durkin said that he thought the FBI used surveillance powers under Section 702 to identify Daoud and then got a traditional FISA order to conduct its sting against him.
“Nonetheless,” he said in the motion Friday, “the government’s interest in confusing these two issues is obvious. If it can avoid giving proper notice to defendants, as it seeks to do here, the government can avoid a challenge to the [FISA Amendments Act] altogether.”
U.S. District Judge Sharon Johnson Coleman has set a trial date for February.