A late Friday news dump may finally clear the way for a constitutional challenge to National Security Agency (NSA) snooping.
The Department of Justice (DOJ) released a “Notice of Intent to Use Foreign Intelligence Surveillance Act Information” for the case of Jamshid Muhtorov, an Uzbek refugee arrested in Colorado in early 2012 for allegedly providing support to the Islamic Jihad Union.
Prosecutors are now admitting that some of the evidence used to arrest Muhtorov came from warrantless NSA spying, which was made legal through the 2008 Foreign Intelligence Surveillance Amendments Act but has not yet passed constitutional scrutiny by the Supreme Court.
The American Civil Liberties Union (ACLU) brought the constitutional question to the court late last year, but the justices threw out the case, arguing that since the ACLU was not the target of surveillance they had no standing to file a lawsuit.
That ruling relied heavily on testimony from Solicitor General Donald Verrilli, who told the court the government was required to disclose any targets of spying who are ultimately prosecuted. Such an individual, he told the Court, would have standing to challenge the program. But, he maintained, the DOJ had not yet prosecuted anyone targeted through these techniques.
That was a lie, albeit an inadvertent one. Despite what national security lawyers had told Verrilli, last summer it became clear DOJ had not been alerting defendants that evidence used against them was obtained through warrantless surveillance. Without that information, the law was effectively impossible to challenge.
Reportedly incensed, Verrilli pushed DOJ lawyers to release information about the cases, arguing that there was no legal basis for the previously policy. Last Friday, he finally got his wish.
“DOJ’s release reflects a ‘cut your losses’ type of conclusion,” said Bradley Moss, a Washington-based national security lawyer, in an interview with The Daily Caller News Foundation.
He said that the previously narrow interpretation of what evidence was “derived from” warrantless wiretapping would likely not stand up to further judicial scrutiny. “For [Verrilli] to go back [to the Supreme Court] and attempt to maneuver his way out of his previous clear comments might test the patience of potential swing votes on the bench and risk a dangerous precedent,” he explained.
“It is entirely plausible — albeit rather concerning — that [DOJ lawyers] felt that the nuances of their interpretation of ‘derived from’ was not essential to Verrilli’s broader argument,” he continued, adding that Verrilli was unlikely to give these lawyers similar deference in the future.
Some pundits wonder why the government chose to release only Muhtorov’s case when other defendants were likely targeted as well. “It’s clear that the feds tried very carefully to pick a case where the facts work strongly in their favor,” wrote Mike Masnick, editor of Techdirt.com.
But The New York Times reports that National Security Division lawyers are identifying other defendants also prosecuted due to information obtained via wiretapping, with plans to release that information shortly. Some of these cases may include defendants who were already convicted, setting up the possibility of a retrial.
Moss doesn’t think it matters which case the DOJ disclosed. “The facts of the individual case are secondary to the broader constitutional arguments that will now be made on the substantive merits,” he said, adding that he “fully expects the ACLU to be involved.”
Patrick Toomey, a spokesman for the ACLU, told The New York Times that his organization “welcomed 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.”
“By withholding notice,” he added, “the government has avoided judicial review of its dragnet warrantless wiretapping program for five years.”
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