A Colorado man facing terrorism charges became the first criminal defendant to challenge the constitutionality of the National Security Agency’s warrantless surveillance program.
Jamshid Muhtorov, a refugee from Uzbekistan, filed a motion Wednesday in federal court in Denver to suppress any evidence obtained from the surveillance on grounds that it was unlawful.
“Mr. Muhtorov believes that the government’s surveillance of him was unlawful for the simple fact that it was carried out . . . under a statute that fails to comply with the Fourth Amendment’s most basic requirements” that the government obtain a warrant and that the monitoring be reasonable, his attorneys said in a 55-page document.
Muhtorov’s case is likely to be the first in which a court weighs the constitutionality of a law that has stoked controversy since it was passed in 2008 as a revision to the Foreign Intelligence Surveillance Act. The Supreme Court ultimately could decide the issue.
Known as Section 702 of the FISA Amendments Act, the law enables the government to monitor communication targeting foreigners. It previously had been challenged, but last year the Supreme Court dismissed a case brought by a group of lawyers, journalists and human rights activists, stating that the plaintiffs could not prove they had been subject to the surveillance.
Muhtorov, however, in October became the first defendant to be notified by federal prosecutors that evidence from the warrantless surveillance program was used in his case. That notice essentially gave him standing to mount a legal challenge.
In a related development in a different terrorism case, a federal judge in Chicago for the first time ordered that a defense lawyer be allowed to review classified evidence obtained under FISA. In the law’s 36-year history, no defense attorney has ever been permitted to view such material, with courts deferring to government arguments that to do so would harm national security.
But in an order issued Wednesday, Judge Sharon J. Coleman said, “This court believes that the probable value of disclosure and the risk of nondisclosure outweigh the potential danger” of allowing the attorney, with proper clearances, to see the material.
The case involves a Chicago man, Adel Daoud, 20, who is accused of plotting to bomb a bar. His trial is scheduled for April.
“The adversarial process is integral to safeguarding the rights of all citizens,” Coleman wrote, “including those charged with a crime.”
In the Colorado case, Muhtorov, 37, is charged, along with another man, of attempting to provide material support to the Islamic Jihad Union, an Uzbek group designated as a terrorist organization; its members, the government says, have trained with and provided support to al-Qaeda. Muhtorov is not accused of plotting an attack on U.S. soil. He pleaded not guilty.
The Justice Department declined to comment on either the Muhtorov or Daoud cases.
The evidence against Muhtorov consists of e-mails and phone calls intercepted in 2011. At least one e-mail exchange is allegedly with an account linked to the Islamic Jihad Union. But the government has not told him which communications it obtained without a warrant, and whether they were used as the basis for subsequent warrant applications.
Muhtorov’s attorneys argue that the 2008 law grants powers “far more sweeping than the authority that the government” has exercised with the traditional court order under FISA, which requires a warrant from a judge and a finding that the target is an agent of a foreign power.
They argued that the Supreme Court has emphasized that a surveillance statute is reasonable only if it is precise and discriminate. The FISA Amendments Act “is anything but,” said the lawyers from the federal public defender’s office and the American Civil Liberties Union.
The 2008 law was passed in the wake of controversy over the revelation that the George W. Bush administration had since 2001 conducted a program of warrantless surveillance exclusively under executive power. The law authorized the government to collect large amounts of e-mails and phone calls from U.S. phone and Internet companies without showing probable cause that each target is a foreign agent. As long as the individual is “reasonably believed” to be located overseas, and a court has signed off on the targeting procedures, no individual warrant is required. The decision on whom to target is left to the intelligence agencies.
“The absence of an individualized suspicion requirement means that the government can engage in the wholesale collection of U.S. persons’ international communications,” the attorneys wrote.
The government also can search communications into and out of the United States for information about targets — not just to or from targets — as long as it believes that those targets are overseas, the lawyers argued, citing documents leaked by a former NSA contractor, Edward Snowden.
Intelligence officials have argued that the program is legal and effective. They credit it with having helped thwart dozens of terrorist plots at home and abroad. “It continues to be one of our most important tools for the protection of the nation’s security,” Director of National Intelligence James R. Clapper Jr. has said.
Intelligence officials have argued that the program is legal and effective. They credit it with having helped thwart dozens of terrorist plots at home and abroad.
They point to rules that protect the privacy of Americans whose communications are collected inadvertently or because they were in contact with a foreign target.
Muhtorov’s attorneys cited a 2011 ruling, declassified last year, that showed concern by the Foreign Intelligence Surveillance Court about a government pattern of “substantial misrepresentation regarding the scope of a major collection program.” In the case of Section 702, the court found that the NSA had been using the law to collect e-mails that were not related to the targeted address and that the “volume and nature of the information” was “fundamentally different from what the Court had been led to believe.”
“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,” ACLU Deputy Legal Director Jameel Jaffer said in a statement.
Muhtorov’s challenge has its roots in the case rejected by the Supreme Court last year. In deciding to dismiss, the Supreme Court relied upon the assurance by the U.S. solicitor general that the government would notify criminal defendants when it had used evidence from the surveillance.
But the solicitor general at the time did not know that the Justice Department had a policy to conceal such evidence from defendants. He learned of it only after some criminal defendants sought clarification of remarks that Senate Intelligence Committee Chairman Dianne Feinstein (D-Calif.) made in late 2012 that the government had used evidence from warrantless monitoring in certain cases. The department reversed its policy last year.