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U.S. Notifies Criminal Defendant of Its Intention To Use FISA Information Against Him

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Saturday, October 26, 2013 at 5:06 PM

In what could be a consequential move, federal prosecutors this week informed a man accused of providing material support to the Islamic Jihad Union (“IJU”) that they intend to “offer into evidence or otherwise use or disclose in proceedings [against him] … information obtained or derived from” intelligence collection conducted under Section 702 of FISA.

The 2011 complaint filed against the defendant, Jamshid Muhtorov, alleges that he communicated with the IJU via email and over the phone (using the word “wedding” as code for a terrorist attack) in order to make plans to travel abroad and to join IJU militants.

The AP and the New York Times both have details on the Department of Justice’s notification in the Muhtorov case.  Earlier this year, in Clapper v. Amnesty International, the Supreme Court had rejected a civil lawsuit against FISA on standing grounds.  But, as the AP reminds us, the ruling also suggested that, under FISA, use by prosecutors of FISA stuff would call for prior notice to the accused—and thus tee up a legal objection.  From the AP story:

In the majority opinion last February, Justice Samuel Alito suggested a way for a challenge to be heard. He said if the government intends to use information from such surveillance in court, it must provide advance notice. In his argument before the court’s decision, Solicitor General Donald Verrilli had made similar comments to the justices on behalf of the administration.

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