Challenges in criminal cases to warrantless surveillance

During the oral argument in Clapper v. Amnesty Internat’l USA, 133 S.Ct. 1138 (2013), the justices of the United States Supreme Court expressed concern over whether a denial of standing in that case would preclude any legal challenge to warrantless surveillance conducted under the authority of Sec. 702 of FISA, 50 U.S.C. 1881a. Solicitor General Donald B. Verrilli, Jr. replied that since criminal defendants were provided with advance notice of the government’s intent to use information obtained or derived from Sec. 702 surveillance, they could challenge that provision in suppression motions. Subsequently, through an article published in The New York Times in June 2013, the Solicitor General learned that he had misled the Court: prosecutors’ policy was not to inform defendants of the intended use of information acquired or derived from surveillance conducted under the authority of Sec. 702. Hence, such surveillance could not be challenged through suppression motions. The ensuing debate within the Department of Justice resulted in a changed, official policy of informing defendants of the intended use of information acquired or derived from warrantless surveillance under Sec. 702.

Thus far, the government’s proposed or past use of information obtained through Sec. 702 surveillance has been revealed to criminal defendants in four cases: United States v. Jamshid Muhtorov, Criminal Case No. 1:12-cr-00033-JLK-01 (D.Colo. filed Jan. 19, 2012); United States v. Mohamed Osman Mohamud, Case No.3:10-CR-00475-KI (D. Or. filed Nov. 29, 2010); United States v Hasbajrami, Crim. Docket No. 11-623 (S1)(JG) (EDNY ); and United States v. Reaz Qadir Khan, Case No. 3:12-CR-00659-MO (D.Or.). There has been litigation over the government’s disclosure obligations in United States v. Daoud, 12 Cr. 723 (N.D. Ill. filed Sept. 15, 2012), and United States v. Qazi et al., Case 0:12-cr-60298-RNS (S.D.Fla. filed Nov. 30, 2012).

The litigation in these cases over the legality of Sec. 702 surveillance has been intertwined with the issue of whether in accord with the provisions in 50 U.S.C. Sections 1806(f) and 1881e(a) for ex parte and in camera determination of the legality of FISA surveillance, the defendants are not entitled to disclosure about the surveillance to which they were subject.

Separate posts discuss the above cases as well as the ACLU’s FOIA action, ACLU, et al. v. DOJ, 13 Civ. 7347 (SDNY filed Oct. 17, 2013), for the release of information about the government’s use of information acquired or derived from warrantless surveillance programs.

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