Defendant Khan’s challenge to warrantless surveillance

United States v. Reaz Qadir Khan, Case No. 3:12-CR-00659-MO (D.Or.)

While awaiting trial, defendant Khan received notice on April 3, 2014 of the government’s intent to use evidence obtained or derived from Sec. 702 surveillance against him. Subsequently, Khan moved for discovery of any additional legal provisions on which the government had relied to conduct surveillance against him. After the government declined to provide the requested notice, Judge Michael Mosman issued an Opinion and Order on November 24, 2014, stating that he agreed that “defendant is entitled to a full opportunity to challenge the government’s investigatory techniques, and the resulting admissibility vel non of evidence.” At 2. Nonetheless, the judge denied the motion on the ground that it was premature. “The day will come when the standing, collection, and other issues foreshadowed in this motion will be litigated in this case. Due to the constraints of CIPA [the Classified Information Procedures Act], properly applied in this case, that day will come in the next round of motions, without the narrowing of issues that detailed disclosure will allow.” At 3.

On February 13, 2015, Khan pled guilty to being an accessory-after-the-fact to a conspiracy to provide material support to terrorists that resulted in death.

For more extended discussion of the notice issues in Khan and in Muhtorov (see our post, “Defendant Muhtorov’s motion for discovery of other surveillance techniques”), see emptywheel, “Raez Qadir Khan: Hoisting the FBI on Its Own Metadata Problems,” Sept. 21, 2014,;
“Even the Government Can’t Figure Out How It Uses Its FISA Dragnet,” Nov. 6, 2014,;
“Michael Mosman’s Interesting 10 days,” January 12, 2015,;
“Jamsheed Muhtorov: The Government Continues to Play Hide and Seek with Surveillance Authorities,” February 27, 2015,

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