Earlier this year, a Somali-American man, Mohamed Mohamud, was convicted of trying to use a weapon of mass destruction at a Christmas tree lighting ceremony in Portland, Oregon in 2010. On Tuesday, November 19, 2013, the Department of Justice’s prosecutors filed a two-page notice in the United States District Court for the District of Oregon disclosing that they had used evidence at Mohamud’s trial that derived from warrantless surveillance of a foreign target outside of the United States.
The surveillance was conducted under Section 702 of the FISA Amendments Act of 2008. The amendment provides the government with the authority to electronically survey foreign targets even if Americans are involved in the communications. The Department of Justice’s notice to the court about the evidence came just a few weeks away from Mr. Mohamud’s sentencing. It also came one month after the Justice Department made a similar disclosure about evidence derived from warrantless surveillance for a case in Colorado that had not gone to trial.
On November 20, 2013, three US Senators – Mr. Ron Wyden of Oregon, Mr. Mark Udall of Colorado, and Mr. Martin Heinrich of New Mexico – sent a letter to Solicitor General Donald B. Verrilli Jr., accusing the Justice Department of not fully disclosing how the FISA Amendments Act (FAA) has been interpreted and implemented. The Senators argue that the Supreme Court was given “misleading information that appears to have informed the majority’s decision” in Clapper v. Amnesty Int’l USA, 568 U.S. __ (2013). In Clapper, Mr. Verrilli argued that the Court did not need to rule on the amendments because criminal defendants would be given advanced notice of any evidence derived from warrantless surveillance and would thus have standing and the opportunity to challenge the surveillance. Writing for the majority, Supreme Court Justice Samuel Alito echoed the language from Mr. Verrilli’s brief: “[I]f the government intends to use or disclose information obtained or derived from” surveillance authorized by the 2008 amendment, “it must provide advance notice of its intent, and the affected person may challenge the lawfulness of the acquisition.”
However, the case in Colorado and the case of Mr. Mohamud demonstrate that federal prosecutors have not made the promised disclosures. Thus, Mr. Mohamud did not have the requisite opportunity to challenge the evidence used at his trial that derived from warrantless surveillance, as Mr. Verrilli posited defendants like Mr. Mohamud would have. The three senators additionally highlight that in Clapper, Mr. Verrilli’s brief and oral argument, as well as a line in the majority’s opinion, indicate that for an American’s communications to be collected without a warrant, the American would have to be in direct contact with someone abroad who was a target of the surveillance program. Yet, information that surfaced in August about National Security Agency surveillance programs, specifies that the Agency searches Americans’ communications in and out of the country regardless of a foreign target being connected to that communication.
Clearly, the fallout of U.S. surveillance programs continues. All this uncertainty will likely lead to a Supreme Court test to determine whether such eavesdropping is constitutional.