In the first filing of its kind, a criminal defendant who was notified that his communications were monitored under the FISA Amendments Act of 2008 today challenged the law’s constitutionality and the admissibility of evidence obtained under it. The defendant, Jamshid Muhtorov, is represented in the motion by the Federal Public Defender’s Office, the American Civil Liberties Union, and the ACLU of Colorado.
The motion argues that the FISA Amendments Act violates the Fourth Amendment because it permits the government to collect and access the international communications of U.S. residents in bulk, without individualized court review.
“The FISA Amendments Act affords the government virtually unfettered access to the international phone calls and emails of U.S. citizens and residents. We’ve learned over the last few months that the NSA has implemented the law in the broadest possible way, and that the rules that supposedly protect the privacy of innocent people are weak and riddled with exceptions,” said ACLU Deputy Legal Director Jameel Jaffer. “Surveillance conducted under this statute is unconstitutional, and the fruits of this surveillance must be suppressed.”
The Supreme Court dismissed the ACLU’s civil lawsuit challenging the FISA Amendments Act last February on the grounds that the ACLU’s plaintiffs – which included Amnesty International USA, Human Rights Watch, and The Nation magazine – could not prove their communications had been collected.
During the litigation, the government assured the Supreme Court that criminal defendants who were actually monitored under the statute would be given a chance to challenge its constitutionality. It was later revealed, however, that the Justice Department had a policy of concealing from criminal defendants the role that the FISA Amendments Act had played in their prosecutions. The Justice Department recently changed its policy, and Muhtorov is the first criminal defendant to receive notice that he was spied on under the law. Muhtorov, a former human rights advocate in his native Uzbekistan who was admitted to the U.S. as a political refugee, is accused of attempting and conspiring to provide material assistance to a resistance group opposed to the repressive Uzbek regime.
“For five years the government insulated this statute from judicial review by concealing from criminal defendants how the evidence against them was obtained, but the government will not be able to shield the statute from review in this case,” said Mark Silverstein, legal director of the ACLU of Colorado.
The President’s Review Group on Intelligence and Communications Technologies, which released its report last month, found that surveillance under the law does not sufficiently protect the privacy of U.S. citizens or residents and should be subjected to a number of significant restrictions – including a bar on the government’s use of evidence obtained through such surveillance in criminal proceedings like Muhtorov’s.
Lawyers on today’s motion are Jaffer, Alex Abdo, Patrick Toomey, Brett Max Kaufman, and Nathan Freed Wessler of the national ACLU; Silverstein and Sara J. Rich of the ACLU of Colorado; and Virginia L. Grady, Brian Leedy, Kathryn Stimson and Warren R. Williamson of the Office of the Federal Public Defender for the Districts of Colorado and Wyoming.