An Oregon man convicted last year of attempted terrorism filed a motion Monday that paves the way for the first constitutional challenge by a criminal defendant to a warrantless surveillance program operated by the National Security Agency.
Mohamed Osman Mohamud, 22, was found guilty of attempting to use a weapon of mass destruction after he was caught in an FBI sting operation trying to detonate what turned out to be a fake bomb at a Christmas tree lighting ceremony in 2010.
His attorneys have argued that he was entrapped — a bluster-filled college student who was conned — while the government has said he was a genuine jihadist who could have made contact with real terrorists.
Late Monday, Mohamud’s attorneys filed a 66-page motion in U.S. District Court in Portland, Ore., seeking discovery of information that they believe will aid in an eventual challenge to the constitutionality of the law that authorized the surveillance used in his case. At the very least, they say, Mohamud deserves a new trial because he was not informed that the government used the warrantless program in bringing its case the first time.
That “raises a wide range of serious issues regarding suppression of unlawfully or unconstitutionally obtained evidence, dismissal or other sanctions based on the government’s intentional violation of governing rules, and, at least, a new trial based on new evidence of governmental overreaching,” wrote Stephen R. Sady, one of the three lawyers defending Mohamud who filed the motion.
A Justice Department spokesman declined to comment Monday.
Mohamud was informed last year that the FBI used evidence obtained through the NSA’s use of intercepts under a provision of a 2008 law that permits eavesdropping without warrants on Americans’ international phone calls and e-mails as long as the surveillance is targeted at foreigners overseas.
That provision, Section 702 of the FISA Amendments Act of 2008, has been challenged before, but the Supreme Court last year dismissed a lawsuit brought by a group of lawyers, journalists and human rights organizations on grounds that the plaintiffs could not prove they were caught up in the surveillance. The group believes the surveillance violates Americans’ constitutional privacy rights.
In that case, Clapper v. Amnesty International, Solicitor General Donald B. Verrilli Jr. assured the divided court that even though the plaintiffs did not have standing to challenge the law, some criminal defendant eventually would because prosecutors would notify people facing evidence derived from Section 702 surveillance.
In fact, prosecutors, who had been operating under a different policy, had not been alerting defendants when their cases were built using the warrantless eavesdropping. When Verrilli learned that was the case, he was angered, and after a protracted debate last summer, the Justice Department’s National Security Division revised its policy.
Last fall, it notified a defendant in Colorado for the first time that evidence from a warrantless wiretap was used against him. Then in November, federal prosecutors alerted Mohamud.
In the motion, Mohamud’s attorneys argued that the information prosecutors withheld may show that the government overreached. It also may show that the surveillance — even if constitutional — violated the statute’s requirements, they said.
The lawyers also want the prosecutors to reveal any evidence that might have come from other NSA surveillance, including the agency’s bulk collection of Americans’ phone call logs and Internet data from U.S. companies. The disclosures of those programs came over the last seven months following leaks by a former NSA contractor, Edward Snowden, and declassification of documents by the government.
“The government likely has records of every one of Mohamed’s calls and Internet communications,” they wrote.
Jameel Jaffer, a lawyer for the American Civil Liberties Union who argued before the Supreme Court on behalf of the plaintiffs in Clapper v. Amnesty International, welcomed Mohamud’s motion. “For five years the government insulated this statute from judicial review by concealing from criminal defendants how the evidence against them was obtained,” he said. “But it’s almost certain that the statute will be tested in this case. There’s no question that this defendant has both the right to more information about the way that the statute was used against him and a right to challenge the statute’s constitutionality.”