United States v. Jamshid Muhtorov, Criminal Case No. 1:12-cr-00033-JLK-01 (D.Colo. filed Jan. 19, 2012)The defendant was charged in January 2012 with providing material support to the Islamic Jihad Union, a designated terrorist organization based in Uzbekistan. On October 25, 2013, the Government filed a Second Notice of Intent To Use Foreign Surveillance Act Information stating that “the government intends to offer into evidence or otherwise use or disclose in proceedings in the above-captioned matter information obtained or derived from acquisition of foreign intelligence information conducted pursuant to the Foreign Intelligence Surveillance Act of 1978, as amended, 50 U.S.C. Sec. 1881a.”
On January 29, 2014, Mr. Muhtorov’s appointed counsel, the federal public defender of Colorado, together with the ACLU Foundation and the ACLU Foundation of Colorado, filed a brief arguing for the suppression of all evidence obtained or derived from surveillance conducted under the authority of the FISA Amendments Act, 50 U.S.C. Sec. 1881a. The brief contended that Sec. 1881a violates the warrant and reasonableness clauses of the Fourth Amendment and also claimed that Sec. 1881a “violates Article III [of the Constitution] by requiring judges to issue advisory opinions in the absence of a case or controversy.” The brief did not broach the issue of whether Fourth Amendment protections extend to overseas communications of foreigners that United States agents acquire within the United States. Rather, the Fourth Amendment argument began with the proposition that “American citizens and residents – including Mr. Muhtorov – have a constitutionally protected privacy interest in the contents of their telephone calls and emails.” The brief went on to state that, “It is important to recognize that the absence of an individualized suspicion requirement [in Sec. 1881a] has ramifications for U.S. persons like Mr. Muhtorov even though the government’s ostensible targets are foreign citizens outside the United States. The absence of an individualized suspicion requirement means that the government can engage in the wholesale collection of U.S. persons’ communications ….”
In addition to arguing that the collection of evidence under Sec. 1881a is per se unlawful, the brief argued that under both FISA and the due process clause of the Fifth Amendment, Mr. Muhtorov was entitled to additional discovery in regard to how Sec. 1881a had been used to authorize the acquisition of his communications and as to the role of such communications in his investigation and prosecution.