Feds Wait Until Late Friday To Release Details Of Criminal Case That Used NSA Surveillance, Which They'd Kept Secret

Legal Issues

from the friday-night:-where-news-goes-to-die dept

Back in July, the NY Times made it pretty clear that United States Solicitor General Donald Verrilli almost certainly lied to the Supreme Court, concerning how evidence obtained via NSA surveillance techniques would end up in court. As you may recall, the lawsuit in question involved the ACLU, with the government arguing that the ACLU had no standing. The Supreme Court asked a basic question about whether or not anyone could possibly have standing then to challenge the law — and Verrilli insisted (and the justices relied on) the claim that if the feds used data collected under these questionable surveillance statutes, that the defense team would be told about this, and they could challenge the constitutionality of the collection. Except… no defendant had ever been told any such thing. And then someone noticed that Senator Dianne Feinstein, in defending the NSA surveillance, had insisted that it was key in a bunch of cases — meaning one of them was lying. This, apparently, got Verrilli quite upset at the various national security lawyers who had looked over his defense and who apparently chose not to tell him that what he was saying about the government telling defendants stuff wasn’t, in fact, true. As was reported a few weeks ago, Verrilli then led a fierce debate within the administration, and said that a policy change was necessary. And, to kick it off, they were searching for a single case in which they would reveal such info was used.

Of course, this allowed the feds to cherry pick their case… and the date and time to release the “news.” So, of course they chose Friday night, which is when the government always tries to release bad news. So we’re taking that news and discussing it the following Monday, because this is big and it deserves serious attention. Late Friday, the government admitted that it had used information gleaned via programs under the FISA Amendments Act in the criminal case against Jamshid Muhtorov, who was charged in January 2012 with “providing material support to the Islamic Jihad Union, a designated terrorist organization based in Uzbekistan.” Much of the original complaint against Muhtorov involves discussions about intercepted calls and emails, though it’s unclear how many (if any) of those were done under the FAA or other law enforcement authorities.

The new notice in the case doesn’t reveal very much at all, other than that the government intends to “offer into evidence or otherwise use or disclose in proceedings… information obtained or derived from acquisition of foreign intelligence information conducted pursuant to the” FAA. Basically, this case now is very likely to become the key case in testing the constitutionality of at least some aspects of the FISA Amendments Act surveillance efforts (which include the “upstream” tapping of the internet backbone via telcos, though it’s not clear if that was used in this particular case).

In other words, this case just got a lot more interesting — though it’s clear that the feds tried very carefully to pick a case where the facts work strongly in their favor. I would imagine, however, that various public interest and civil liberties groups are gearing up to see how they might help out in the case.

Filed Under: dianne feinstein, donald verrilli, fisa amendments act, jamshid muhtorov, nsa, nsa surveillance, standing