The parties’ positions on disclosure of Sec. 702 surveillance
In addition to arguing that the collection of evidence under Sec. 1881a is per se unlawful, in its brief of January 29, 2014 in United States v. Jamshid Muhtorov, Criminal Case No. 1:12-cr-00033-JLK-01 (D.Colo. filed Jan. 19, 2012), the defense argued for additional discovery. The defense contended that under both FISA and the due process clause of the Fifth Amendment, Mr. Muhtorov was entitled to in regard to learn how Sec. 1881a had been used to authorize the acquisition of his communications and how such communications had been used in his investigation and prosecution.
In its unclassified memorandum of May 9, 2014, the government argued that 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 had been triggered by the Attorney General’s certification that disclosure of the Sec. 1881a materials or an adversarial hearing in Mr. Muhtorov’s case would harm the national security. According to the government, ex parte and in camera review would be sufficient to enable the court to determine that the surveillance in the case was legal. Since Sec. 1806(f) permits disclosure by the court to an aggrieved person “only where such disclosure is necessary to make an accurate determination of the legality of the surveillance,” no disclosure of the Sec. 1881a application, order or other materials in the case was warranted.
Litigation over disclosure of classified material
On June 12, 2014, defendant Muhtorov filed a motion asking the court “to control the government’s due-process killing obsession with secrecy and security” by ordering disclosure to the defense of the classified material that was redacted from the government’s unclassified memorandum of May 9, 2014 and included in the classified memorandum filed on May 22. The government responded to the motion on July 2, 2014.