Muhtorov’s reply to the government’s position on warrantless surveillance

On July 3, 2014 in United States v. Jamshid Muhtorov, Criminal Case No. 1:12-cr-00033-JLK-01 (D.Colo. filed Jan. 19, 2012), the defense filed a reply to the government’s response to the motion to suppress, urging that “it is important not to lose sight of the broader import of the government’s theory … that Americans have no constitutionally protected privacy interest in their international communications. … Under the government’s logic, the NSA may record every international phone call and copy every international text message and email. It may search those communications without limitation – for evidence of criminal activity, for foreign-intelligence information, or for anything else the government may be interested in learning.” At 2.

On July 22, Muhtorov supplemented his reply with two articles from The Washington Post: Barton Gellman, Julie Tate & Ashkan Soltani, “In NSA Intercepted Data, Those Not Targeted Far Outnumber the Foreigners Who Are,” Wash. Post, July 5, 2014; and Barton Gellman, “How 160, 000 Intercepted Communications Led to Our Latest NSA Story,” Wash. Post, July 11, 2014. Contending that “[t]he articles offer the best public evidence available of how the government implements the FAA’s targeting and minimization procedures and of the scope of ‘incidental’ collection of U.S. persons’ communications under the FAA,” Muhtorov claimed that the articles “directly support[ed his] challenges to [the] constitutionality of the FAA and … his request for discovery and for a Franks hearing.” In particular, Muhtorov argued that, “First, the articles undermine the NSA’s claim that its targeting procedures are reasonably designed to limit FAA surveillance to foreigners abroad.” At 2. “Second, the articles confirm that the NSA does not purge incidentally acquired information of [sic] U.S. persons.” At 4. “Finally, the articles quantify the extraordinary scale of supposedly ‘incidental’ collection.” At 5

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