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.