The government, according to a defense motion, “directly violated Congress’ instruction” to notify the court and the defense that it would be using data from communications “collected, retained and accessed through warrantless electronic surveillance.”
It notified the defense in November of last year—after he had been convicted—that warrantless surveillance had been used by prosecutors in the case of Mohamed Osman Mohamud. His sentencing has been indefinitely delayed while his defense pursues challenges to the legality of the surveillance.
Chief Deputy Federal Public Defender Stephen R. Sady and Assistant Federal Public Defender Lisa Hay have requested evidence related to the decision to not notify the defense of warrantless surveillance. They believe that this constitutes deliberate misconduct and that the defense should have access to materials on government surveillance.
However, Judge Garr King denied a motion for such materials believing it was not necessary for King to determine whether to sentence Mohamud, grant a new trial or dismiss the indictment.
The electronic surveillance used against Mohamud at trial was collected under Section 702 of the Foreign Intelligence Surveillance Act (FISA). Mohamud’s defense filed a motion arguing it is unconstitutional and all evidence collected under this section should be suppressed.
It “fails to provide judicial review of specific instances of searches and seizures of Americans’ personal communications,” “fails to require probable cause, or any level of suspicion, before the government can search, seize, retain, and later access those communications,” “fails to require specificity regarding the individual targeted by – or the facility to be accessed during – the electronic surveillance.”
The motion further suggests that law “limits the FISA court’s authority to insist upon, and eliminates its authority to supervise, instance-specific privacy-intrusion minimization procedures” and that the law “provides no accountability regarding surveillance of individual Americans’ electronic communications.”
Mohamud’s lawyers acknowledge “this is a highly unusual suppression motion because the government has provided no discovery regarding the circumstances under which the electronic surveillance was conducted, what information was obtained, and how it was used, and the court has denied the defense motions for discovery.”
“Basically, this motion seeks suppression of unknown evidence and other uses of information gathered at unknown times by unknown means by unknown persons and agencies operating under unknown protocols,” the motion adds.
The fact that the defense was kept uninformed about evidence collected under FISA is described as unconstitutional. And then there is the additional aspects of the law that violate privacy rights, however, the defense attorneys seem to grasp that they may not have enough information to mount a successful challenge to the constitutionality of the law’s other alleged defects.
Simultaneously, his defense moved for his conviction to be vacated because the government had not provided notification of warrantless surveillance or, if the court did not want to do that, grant him a new trial.
A separate motion requesting a new trial argues that “government conduct, including surveillance activity, was central to the entrapment defense that was presented at trial.” Had evidence of additional surveillance been available it would have been “relevant and helpful” to whether Mohamud had a predisposition to commit such an attack or whether he was a “confused and manipulable teenager” targeted by the government.
“There was a sharp dispute about the nature and integrity of the investigation itself,” the motion also suggests. “Evidence of additional surveillance likely would have enabled the defense to impeach the government’s narrative with respect to the propriety of the investigation.”
According to defense attorneys, the government surveillance against Mohamud made it possible for agents to “gain an incredibly intimate understanding of Mohamed that was then used to tailor the sting operation in a way that would maximize the likelihood that he would carry through with the eventual plan. Whether this inducement was through exploiting known vulnerabilities, such as Mohamed’s confusion about his religion and need for a father-figure, or whether it was by mimicking language found in earlier communications, any evidence of additional government surveillance was necessary to allow the jury to fully assess the government’s conduct.”
But no notice of surveillance under Section 702 meant that it was harder for the defense to show whether Mohamud was “entrapped into committing” terrorism.
It is strongly believed by Mohamud’s defense that, based off what the disclosures from former NSA contractor Edward Snowden have revealed, the government’s surveillance was probably massive in scope. Any evidence of predisposition to commit terrorism would have been evident in any collected communications.
With respect to predisposition, the defense argued that an individual predisposed to use a weapon of mass destruction domestically would have taken certain steps that would be indicative of that mentality. For example, an individual predisposed to bomb Pioneer Square (or elsewhere in the United States) might research domestic target locations or visit web sites to learn bomb-making skills; he might take steps to finance such an attack, accumulate necessary material or recruit like-minded confederates; he might, at the least, express such a desire in private communications or even on social networking sites.
“In this age of technology and social media, the defense argued that, if such evidence existed, somebody who had total access to Mohamud’s electronic communications and activities would have found it.”
No such evidence was produced at trial. Unfortunately for the defense attorneys and Mohamud, the defense was unable to successfully prove a negative or that the lack of evidence was proof that no planning occurred.
Finally, as this unfolds, in Chicago, the government has appealed a decision by a federal judge to order the government to disclose materials related to FISA surveillance to the defense of Adel Daoud, a young Muslim who was arrested in an undercover sting operation by the FBI and accused of plotting a terrorist attack.
The government believes the judge’s decision to grant the defense access to material may bring about a “sea change in FISA litigation.” They do not believe it is a judge’s place to override the government’s interest in “national security” and allow the defense to personally review FISA applications and orders, however, the defense counters that it is important to figure out how Daoud ultimately became an FBI target.
Attorneys have had significant difficulties for years challenging the nature of FBI sting operations used against individuals to produce cases that could result in high-profile terrorist convictions for the government.
The possibility that Snowden could ultimately be a key factor in a wave of cases, where defense attorneys are able to challenge misconduct by FBI agents, is quite remarkable.