PORTLAND, Ore. – A federal judge has affirmed the legality of the U.S. government's bulk phone and email data collection of foreign nationals living outside the country — as well as contact with U.S. citizens — in denying a man's motion to dismiss his terrorism conviction.
It was the first legal challenge to the government's bulk data-collection program of non-U.S. citizens living overseas after revelations about massive, warrantless surveillance were made public by former National Security Agency employee Edward Snowden.
The program also sweeps up information about U.S. citizens who have contact with overseas suspects. This type of surveillance played a key role in this case.
Lawyers for Mohamed Mohamud, a U.S. citizen who lived in Oregon, tried to show the program violated his constitutional rights and was more broadly unconstitutional. U.S. District Court Judge Garr King on Tuesday denied that effort.
The ruling also upheld Mohamud's conviction on terrorism charges. In his decision, King rejected the argument from Mohamud's attorneys that prosecutors failed to notify Mohamud of information derived under the U.S. Foreign Intelligence Surveillance Act until he was already convicted.
Suppressing the evidence collected "and a new trial would put defendant in the same position he would have been in if the government notified him of the (surveillance) at the start of the case," King wrote. "Dismissal is not warranted here."
Mohamud's attorneys argued that such a failure withheld important information from the defense team.
Mohamud was convicted last year of attempting to detonate a bomb at Portland's Christmas tree-lighting ceremony in 2010. The purported plot was actually an FBI sting, and the bomb was a fake.
The bulk data collection under FISA permits the U.S. government to sweep up information regarding foreign nationals "reasonably believed" to be outside the U.S. But it also includes the incidental collection of data from U.S. citizens communicating with people in other countries.
That was the case with Mohamud, whose email communications with two terror suspects were used as evidence at his trial.
Both of those men, U.S. citizens Anwar al-Awlaki and Samir Khan, were killed in drone strikes in 2011. The federal government classified the men as enemy combatants. On Monday, a federal court released the Justice Department memo justifying their killings.
Mohamud also communicated with a friend who was believed to have traveled to Pakistan to attend a terrorist training camp, according to evidence presented at the trial.
Other potential challenges to foreign surveillance watched the Portland case closely, said Electronic Frontier Foundation staff attorney Hanni Fakhoury, including a pending challenge in Colorado.
Mohamud "is at such a significant disadvantage," Fakhoury said. "He doesn't even have the evidence to make the challenge. That's the whole problem in this whole regime of after-the-fact (informing of suspects)."
Indeed, King said in his ruling that Mohamud's attorneys didn't have classified information provided by prosecutors to King, and therefore could only speculate as to the evidence given falsely or omitted by the government.
"This is insufficient," King said in the ruling. "I realize the difficult position the defense team is in, but the denial of a (hearing) is commonplace in the FISA context."
King held that Mohamud's most persuasive argument was that, even if the original surveillance were lawful, the subsequent use of that information on a U.S. citizen required a warrant. Previous federal appeals court rulings have said that the government needs a warrant to test pills seized in an unrelated search or to search a computer for more information that the warrant sought.
Those rulings, the defense argued, meant King should apply the same standard to the evidence seized.
But King disagreed.
"I do not find any significant additional intrusion," King wrote. "Thus, subsequent querying of (collected data), even if U.S. person identifiers are used, is not a separate search and does not make (such surveillance) unreasonable under the Fourth Amendment."
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