The Justice Department on Friday informed a terrorism suspect in Colorado that it intends to use evidence against him gathered through the government’s warrantless surveillance program, a move that will likely lead to a constitutional challenge to the law.
It is the first time the government has informed a criminal defendant that it intends to use “information obtained or derived from acquisition of foreign intelligence information conducted pursuant to the Foreign Intelligence Surveillance Act.”
It is important because the Supreme Court last term declined to consider the constitutionality of the law amended five years ago because it said those who brought a lawsuit against it could not prove they had been subject to its provisions.
With the filing Friday, “it’s the first time since 2008 when the act was signed into law that the government has acknowledged the use of surveillance derived from the law in a criminal prosecution,” said Jameel Jaffer, deputy legal director of the American Civil Liberties Union.
Jaffer, who argued the previous case at the Supreme Court, said it was a “big deal” that “will undoubtedly set up a constitutional challenge to it.”
The notification came in the government’s case against Jamshid Muhtorov, a refugee from Uzbekistan who lives in Aurora, Colo. He was charged in 2012 with giving material aid to the Islamic Jihad Union, and he and another man were suspected of trying to participate in a terrorist attack planned by the group.
But the notification is more important to a potential challenge of the FISA law than to the specifics of Muhtorov’s case.
When the Supreme Court earlier this year dismissed the challenge to the expanded federal law, which allows the interception of electronic communications between foreign targets and people in the United States, it said the lawyers, journalists and human rights organizations who brought the suit could not prove they had been caught up in the surveillance.
As a result, they did not have legal standing to challenge the constitutionality of the law’s 2008 expansion, Justice Samuel Alito Jr. wrote for fellow conservatives in the 5 to 4 decision.
The court’s liberals said the decision effectively protected the law from constitutional scrutiny, because no one would be able to prove they had been subject to the law.
But Alito, relying on a presentation from the government and Solicitor General Donald Verrilli Jr., said there was a way to challenge the law.
“If the government intends to use or disclose information obtained or derived from” such surveillance in judicial or administrative proceedings, Alito wrote, “it must provide advance notice of its intent, and the affected person may challenge the lawfulness of the acquisition.”
Alito’s language was strikingly similar to the presentations Verrilli had made to the court. But the solicitor general found out later that Justice Department lawyers did not believe they were required to make such notifications.
Friday’s action was the result of a vigorous internal debate between lawyers in the Justice Department’s National Security Division and Verrilli, said an administration official who spoke on the condition of anonymity to discuss the sensitive matter.
Verrilli argued that there was no legal basis for withholding disclosure, while the NSD lawyers maintained that it was not necessary unless the evidence derived from the wiretap or intercepted email was introduced directly into the case.
“NSD felt it was a policy decision rather than a legal requirement,” the official said.
But lawyers in two terrorism cases in the spring pressed prosecutors to confirm that intercepts under the 2008 FISA Amendments Act were used in the investigation. They wanted to be able to challenge the surveillance.
Prosecutors argued that they did not have to do so because, the reasoning went, if the warrantless surveillance was used to obtain a traditional warrant, then only evidence obtained using the latter would need to be disclosed, the official said. “That’s the narrow interpretation,” the official added
Verrilli disagreed - indeed, his position was presented to the Supreme Court in the government’s brief in last term’s case, Clapper v. Amnesty International USA.
The debate stretched through the summer; eventually Verrilli’s argument won out. “Therefore Justice is moving forward with making the notifications,” the official said.
Supporters of the 2008 law say the federal surveillance court that oversees the law’s application has approved rules to protect Americans’ privacy. “Collection is done under the statute pursuant to procedures that the court has held are reasonable under the Fourth Amendment - and therefore are constitutional,” said one former senior national security lawyer, who also spoke on the condition of anonymity.
But critics argue that it is unconstitutional because it allows the government to monitor telephone calls and emails without probable cause or any of the other safeguards that the Fourth Amendment’s protections against unreasonable searches ordinarily require. “It allows dragnet surveillance of Americans’ international communications,” Jaffer said.