Justice Dept. to Use Warrantless Surveillance in Terror Case for First Time

Monday, October 28, 2013
(graphic: Mike Arauz)

Setting the stage for an inevitable constitutional showdown at the U.S. Supreme Court, attorneys for the Justice Department admitted on Friday to a terrorism defendant that it intends to use evidence at his trial “derived from acquisition of foreign intelligence information conducted pursuant to the Foreign Intelligence Surveillance Act” amendments (FAA) of 2008. This marks the first time the government has stated that it is relying on evidence gathered via its warrantless surveillance activities—and it almost didn’t happen.


Prosecutors filed the notice late Friday in the case of Jamshid Muhtorov, who stands charged with providing material support to the Islamic Jihad Union, which based in Muhtorov’s native Uzbekistan and which the U.S. government has designated a terrorist organization. Muhtorov was arrested in Aurora, Colorado, in January 2012. The criminal complaint filed against Muhtorov relies heavily on e-mails and phone calls that the government intercepted without obtaining a search warrant as required by the Fourth Amendment to the Constitution. Muhtorov’s attorney will now be able to file papers asking the trial court to suppress that evidence, and the inevitable appeals will eventually reach the Supreme Court.


But this summer, Justice Department lawyers with its National Security Division (NSD) argued that disclosure was not necessary unless the evidence obtained without a warrant was introduced directly into the case. Although that contradicts the “fruit of the poisonous tree” doctrine—the legal rule that if authorities obtain evidence unconstitutionally, its use to obtain additional evidence taints that evidence as well and forbids its use at trial—NSD feared that disclosure could hamper intelligence efforts.


NSD lost the fight because its position contradicted assurances made by Solicitor General Donald B. Verrilli Jr. to the Supreme Court last year during the case of Clapper v. Amnesty International USA, challenging the FAA’s constitutionality. The court dismissed the case because it ruled that the attorneys, journalists and human rights groups who brought the suit could not prove they had been subjected to the surveillance and thus lacked “standing” to litigate the case.


During oral arguments, Verrilli responded to concerns from the Court’s liberals about whether anyone would ever be able to challenge the FAA by stating that if prosecutors intend to use evidence obtained under the FAA without a warrant, they would have to provide advance notice so that a defendant could challenge its admission at trial. The Court relied directly on Verrilli’s statement in its opinion. Thus when Verrilli learned this spring that NSD attorneys were taking an opposite position in ongoing cases, it was a matter not merely of legal interpretation but of his—and the Obama administration’s—credibility before the courts.


In a statement, ACLU attorney Patrick Toomey welcomed the opportunity to litigate the FAA’s constitutionality. “We welcome the government’s belated recognition that it must give notice to criminal defendants who it has monitored under the most sweeping surveillance law ever passed by Congress,” he said. “By withholding notice, the government has avoided judicial review of its dragnet warrantless wiretapping program for five years.”

-Matt Bewig


To Learn More:

U.S. Tells Terror Suspect it will Use Surveillance Evidence, Setting up Possible Legal Challenge (by Robert Barnes and Ellen Nakashima, Washington Post)

Federal Prosecutors, in a Policy Shift, Cite Warrantless Wiretaps as Evidence (by Charlie Savage, New York Times)

Feds Sued for Hiding NSA Spying From Terror Defendants (by David Kravets, Wired)

Colorado Man Arrested for [Allegedly] Providing Material Support to a Designated Foreign Terrorist Organization (U.S. Attorney’s Office District of Colorado) (pdf)

U.S. v. Jamshid Muhtorov, Criminal Complaint (pdf)


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